Filibuster. Cloture. Nuclear option. They sound like words that only political junkies can fully explain, but right now, they’re words that every worker in America needs to know and understand. What happens in Congress during the next few weeks could permanently alter the balance of power in this country, not only between our various branches of government, but between employer and employee — and not in the employee’s favor.

Since President Bush took office in 2001, there have been a number of battles in Congress over the individuals he has nominated to become federal judges. Most of these battles have thus far resulted in those individuals being confirmed: the Senate has confirmed 204 of his nominees, while blocking only 10 nominees. The vacancy rate on the federal courts stands at its lowest rate in 14 years. (See IndependentJudiciary.com.) Most of the battles over those nominees not yet confirmed have been based upon the records of those nominees, and the belief that they will issue out-of-the mainstream, right-wing activist rulings (although a few have been in protest of the treatment of nominees during the Clinton administration, where a number of nominees were bottled up in the Senate Judiciary Committee, rather than being submitted to the entire Senate for approval.) (See MSNBC article.)

While it was expected that the pace of nominees receiving Senate approval would slow in 2004, on account of it being an election year, once President Bush was successfully reelected, there was an expectation that even controversial nominees would start to move forward again. Several nominees that did not receive approval in the last session of Congress have been renominated, which brings us to the filibuster. The filibuster is a time-honored Senate tradition which allows a political minority to prevent action on legislation or a nomination for an executive branch position or a federal judgeship. While a minority of one can use the filibuster to continue debate and prevent a vote, Senate rules require 60 votes to invoke “cloture,” which means to end debate and allow a vote to proceed. (See About the Filibuster and the Nuclear Option.)

On nominees about which the Democratic party was mostly unified, this meant, in the last Congress where Republicans had only a 51-49 majority, that Democrats could successfully filibuster most controversial nominees. After the November 2004 election, Republicans gained enough seats that they now hold a 55-45 majority, but there are still nominees about which the Democratic caucus is unified enough to prevent those nominations from being successfully confirmed on the Senate floor. Because Senate Democrats have been successful at preventing the nomination of the most controversial and extreme nominees — the ones most prized by the Right — Republican frustration led to talk of what has become known as the “nuclear option.”

The nuclear option, called that because of the havoc it would wreak with the way the Senate has done business for two hundred years, entails changing the rules of the Senate to allow nominations to proceed with a simple majority vote. (See The Nuclear Option — Step By Step.) Instead of the 60 votes needed to invoke cloture and end a filibuster, a nomination could proceed with a simple majority vote. As the Senate currently stands, this would not even require that Republicans unanimously support a nominee, as only 50 of 55 Republican senators could vote in favor of a particular nominee, and Vice President Dick Cheney could cast a tie-breaking vote. (See Fact versus Myth: The Truth About the Nuclear Option.)

So after a little bit of “Judicial Nomination Process 101,” you may be asking what all this has to do with workers. First, here are just a few reasons why judicial nominees are important:

• Judges make many decisions that can affect whether you, your loved ones, or your coworkers are able to obtain justice if you have to go to court some day to enforce your legal rights.
• Judges’ legal interpretations may even affect how your boss treats you: if legal violations go unpunished, your employer could be less likely to treat you fairly and follow the law.
• Many judges are intelligent, fair, and follow the law, but some judges are swayed by their own personal or political views, producing decisions that ignore or contradict existing law or the intent of those who created the law.
• What’s more, judges in federal court have “lifetime tenure.” They are not subject to re-election, reappointment, or recall for the rest of their lives. The only time that the American public can influence the process is at the beginning, when a federal judge is first nominated. Once a bad or biased judge is confirmed, there’s little more that can be done.

(See WF’s “Fair Judges” page.) So any process which makes it easier for bad nominees with anti-worker records to be confirmed is one that workers have a stake in opposing. Our allied organization, NELA, has joined many progressive coalition partners in opposing the nuclear option and the filibustered nominees who may trigger its application, as part of its process of “advocat[ing] for an impartial judiciary that does not place the interests of employers over the rights of employees.” (See NELA Judicial Nominations page)

But even more importantly, there is no reason to think that once the filibuster is eliminated for nominees, that it will not be eliminated for other legislative issues as well. One recent commentary showed how Republicans, despite a Democratic president and Democratic congressional majority in 1993, were able to use the filibuster to kill the Workplace Fairness Act, which would have dramatically strengthened unions and the ability to organize collectively.

This bill was everything Democrats dreamed of, and all that Republicans loathed. It was a sop to organized labor, giving workers the right to strike without fear of being permanently replaced. It held out the possibility of greatly strengthening labor’s hand and perhaps reversing its decline within private-sector workplaces.

In the labor vs. capital equation, the GOP believed at its core that the way to strengthen the economy was to tip the balance in favor of Capital, aka, employers. Moreover, the Workplace Fairness Act would add considerable muscle to the Democratic base.

On June 15, 1993, it passed the U.S. House 239-190. In the Senate, 53 of the 100 senators favored it. But it didn’t become law because Senate rules said it took 60 votes to end debate and force a final vote on the bill. The Workplace Fairness Act died, and Labor’s long, slow decline has continued, much to the delight of the GOP.

(See Portland Press-Herald op-ed.) If this is what happened with the filibuster in place, what do workers think will happen without it? As it now stands, there is a way to stop the most extreme legislation from becoming law, and the most extreme nominees from interpreting the law. While we, of course, do not think bills like the Workplace Fairness Act are extreme, we recognize that it also paved the way for bipartisan support of more moderate measures passed during that same time period, such as the Family & Medical Leave Act.

The move to invoke the nuclear option is already in process, starting with the reinvigorated nominations of Priscilla Owen and Janice Rogers Brown, who were approved last week by the Senate Judiciary Committee. (See CNN.com article.) It is not yet clear whether the Senate Republican leadership has enough votes to invoke the nuclear option, but there will be extreme pressure placed on moderate Republicans who might break ranks with their colleagues, especially by religious conservatives energized by abortion and other key issues. (See Reuters article.)

If the American worker does not join with other progressives to defend the filibuster, our federal courts are going to continue their march to the extreme right. Workers’ voices are going to have to be extremely loud, to drown out the other voices pressuring the Senate to “go nuclear.” It is extremely important that everyone let their Senators know now that the nuclear option is a completely unacceptable way to resolve the current impasse over judicial nominations. Otherwise, workers’ rights will be one of the many casualties our democracy will experience.

More Information:

Workplace Fairness: Save Workers from Extremist Judges: Say NO to the Nuclear Option
See also: Fair Judges page; Take Action page

National Employment Lawyers Association:
The National Employment Lawyers Association Acts on “Nuclear Option”
See also: Judicial Nominations page; Take Action page

Alliance for Justice: IndependentJudiciary.com; SavePhil.com
American Constitution Society: Judicial Nominations
Earthjustice: Judging the Environment: What’s New?; Anti-Nuke Editorials
People for the American Way: Independent Judiciary; Filibuster Action Center

New blog on nominations: Judging the Future

Of the many interesting nominations battles currently happening in the U.S. Senate, there’s one that currently stands out as being of interest to those who care about what happens in the workplace. No, it’s not a judicial nomination, although those are certainly quite important. I’m talking about the nomination of Undersecretary of State John Bolton as the United States’ ambassador to the United Nations. What makes this battle worth paying attention to is the focus during the nomination hearings on Bolton’s treatment of the employees who worked for him. If Bolton’s nomination is ultimately derailed (and it might be heading in that direction), it will be a victory for employees everywhere bullied by their bosses.

When Bolton was first nominated, the question was whether it was appropriate for someone who had such contempt for the United Nations to be our nation’s representative to the body, akin to “putting a fox in charge of the henhouse.” (See Denver Post editorial) Bolton once said that if the top 10 floors of the UN headquarters disappeared, “it wouldn’t make a bit of difference.” (See Newsday article.) He has alarmed North Korea and China with his branding of North Korean leader Kim Jong Il as a “tyrannical dictator.” (See Chicago Tribune article.) But his views, described by one newspaper as “ultra-hawkish,” and another as “fiercely conservative,” are not what are sinking his nomination — in fact, truth be told, those views alone likely have enough support amongst the Republican majority of Congress to boost his nomination. What is causing even some Republicans to take a second look at his nomination are allegations that he is a bullying boss who has a history of mistreating his subordinates.

Carl Ford, the former chief of intelligence and research at the State Department, told the Senate Foreign Relations Committee that Bolton was a “serial abuser” of low-level employees and a “quintessential kiss-up, kick-down sort of guy.” (See USA Today article.) Melody Townsel, a businesswoman working on a government contract in Moscow in 1994, said Bolton, sent to persuade her to withdraw a complaint about lack of funds, threw a tape dispenser at her and made remarks about her weight and sexual orientation. She remarked about the experience in Moscow,

Mr. Bolton proceeded to chase me through the halls of a Russian hotel — throwing things at me, shoving threatening letters under my door and, generally, behaving like a madman. For nearly two weeks, while I awaited fresh direction from my company and from US AID, John Bolton hounded me in such an appalling way that I eventually retreated to my hotel room and stayed there. Mr. Bolton, of course, then routinely visited me there to pound on the door and shout threats…

He indicated to key employees of or contractors to State that, based on his discussions with investigatory officials, I was headed for federal prison and, if they refused to cooperate with either him or the prime contractor’s replacement team leader, they, too, would find themselves the subjects of federal investigation. As a further aside, he made unconscionable comments about my weight, my wardrobe and, with a couple of team leaders, my sexuality, hinting that I was a lesbian (for the record, I’m not).

(See Daily Kos post.)

It is also claimed that Bolton tried to have three intelligence analysts removed after they disagreed with him. Ford said he refused Bolton’s request to remove biological weapons expert Christian Westermann, and testified that after a heated argument (where Bolton said that “he wasn’t going to be told what he could say by a midlevel INR munchkin analyst,”), Bolton stopped speaking to him. (See Cincinnati Post article.) In another incident, Bolton and Otto J. Reich, former assistant secretary of state for Western hemisphere affairs, asked a CIA analyst’s boss, Stuart Cohen, to remove the analyst, saying they had lost confidence in his work, Cohen and the analyst said. After a review, Cohen found no merit to the complaint against the analyst, and CIA Deputy Director John E. McLaughlin declined to have him removed. The third analyst, Rexon Ryu, was a State Department Middle Eastern proliferation specialist now on temporary assignment working for Sen. Chuck Hagel. Ryu was transferred from his State Department assignment at Bolton’s request. (See Los Angeles Times article.)

After all of this testimony about how Bolton treated the people with whom he worked, support for his nomination began to wane. Three of the Republicans on the committee whose votes are critical in the face of Democratic opposition, Sen. Chuck Hagel (R-NE) (whose staffer Ryu was one of those Bolton is said to have bullied), Sen. Lincoln Chafee (R-RI), and Sen. George Voinovich, R-OH, have all expressed reservations about Bolton’s nomination. Voinovich publicly expressed earlier this week, ”I’ve heard enough today that I don’t feel comfortable about voting for Mr. Bolton.” (See Boston Globe article.) In the face of this opposition from Republican members of the committee, the vote on Bolton’s nomination was hastily postponed for three weeks, ostensibly to allow more time for the allegations to be investigated, but also to allow all of the necessary politicking to take place. (See San Francisco Chronicle article.)

The President has joined the fray, claiming that politics is responsible for sinking Bolton’s nomination. The President’s press secretary commented that “what you’re seeing is the ugly side of Washington, D.C., that people are playing politics with his nomination.” (See Scripps Howard article.) Playing politics with a nomination? Say it isn’t so! While I’m sure that opposition to Bolton’s nomination is as political as anything else before the Senate right now, what’s interesting is the traction of the bullying allegations. None of the conduct alleged thus far appears to rise to the level of what is currently considered illegal conduct under the law, but there is nonetheless a recognition that Bolton’s actions towards his subordinates reflect poorly on his temperament and character.

And, as one commentator wryly noted, “It’s not as if John Bolton…is the only boss accused of being abusive in this Type A, stressed-out, intensely ambitious town.” But the reason the allegations have some resonance, according to some experts, are “because the job he’s been nominated for requires consummate diplomatic skills — and because many Americans, at one time or another, have worked for a boss they consider abusive.” (See USA Today article.)

While Secretary of State Condoleezza Rice expresses that “I think we make a mistake when suddenly comments about management style become part of the confirmation process,” it will certainly strike fear (as it should) into the hearts of ambitious bosses in Washington (and elsewhere) if from now on, one key aspect of fitness to be evaluated before a top-ranking nominee is confirmed is how that person threats his or her subordinates and colleagues. Whether it will lead to support for legislation to make generalized bullying illegal is another matter, but it certainly can’t hurt to draw attention to this issue.

Just as “Nannygate” meant that fewer people exploited their domestic employees, perhaps Bolton’s battle over bullying will mean that more employers (especially those with political ambitions) take a good hard look at what their employees would say about how they have been treated if ever summoned to testify, and reform their behavior accordingly.

More Information:

Workplace Fairness: general information on harassment

Workplace Bullying and Trauma Institute

Bullybusters.org

Just a few days after paying last year’s taxes, women are still receiving last year’s wages as well. Today (Tuesday, April 19) is Equal Pay Day, designed to call attention to this country’s disparity in wages by gender. The month is selected to represent the amount of additional time that women have to work to make the same amount of wages that men made by December 31 of last year, while the day, Tuesday, is selected to represent when womens’ wages catch up from the previous week. We look forward to the day that this event is celebrated in March, February, or even January, and especially to the day that we no longer need to observe it at all.

Each year, the National Committee on Pay Equity (NCPE) organizes the national observance of Equal Pay Day (or, as one commentary correctly observed, “Unequal Pay Day,”) to raise awareness about unfair pay for women and people of color in America. NCPE is a coalition of women’s and civil rights organizations; labor unions; religious, professional, legal, and educational associations, commissions on women, state and local pay equity coalitions and individuals working to eliminate sex- and race-based wage discrimination and to achieve pay equity. Each year, to promote observance of the day, NCPE produces an Equal Pay Day Kit, with legislative information, media releases, letters, and proclamations, that can be used to generate local interest in equal pay issues. Those observing the day are asked to wear red, to signify that women are in the red when it comes to pay.

Because there’s an annual observance, the facts may lose some of their shock value, but it is still startling to realize that women make only 73% percent of what men make. Although there has been progress, with the wage gap narrowing approximately 10% over the last ten years, 60% of that progress can be attributed to the declining wages of male workers, rather than a significant boost in women’s pay. (See NCPE Q & A on Pay Equity.) Here’s what this means in real terms: “Totaling more than $300,000 for the average woman’s career, it can mean the difference between owning a home or renting, sending your kids to college versus sending them to flip burgers, and a decent retirement versus penury in old age.” (See Houston Chronicle op-ed.)

Women of color are at an even greater disadvantage when it comes to wages:

In one year, the average black woman earns approximately $12,000 less than the average white man does. Over a 35-year career, this adds up to $420,000!

In one year, the average Hispanic woman working full-time earns $17,837 less than the average white man does. Over a 30-year career, that adds up to $510,000!

(See NCPE Women of Color in the Workplace.)

Some may argue that part of the disparity in wages between women and men can be explained by life choices: women more often choose to stop working or work less than full time in order to raise children, for example. NCPE responds by citing the studies in numerous professions which show that a wage gap exists even when comparing women and men who have the same job, education, qualifications, and time in the workforce. (See NCPE Examining the “Women’s Choices” Theory). For example, a survey of public relations professionals showed that women with less than 5 years of experience make $29,726 while men with the same amount of experience make $48,162. A study of women in the telecommunications industry showed that among video programmers, women with advanced degrees earn 64.6% of their male counterparts, and women with college degrees earn 80%.

Another part of the problem is what is known as “comparable worth,” the reality that jobs that are traditionally male are valued more highly than jobs that are traditionally female. Or, as one commentator put it:

Why do parking lot attendants get paid more than child care workers? Is it harder work? Does it take more training? Is the work somehow more valuable to society?

Or is it that most parking lot attendants are men, and most child care workers are women?

(See Denver Post op-ed.) NCPE cites various pay equity studies which have grappled with this problem, and the results are illuminating. (See NCPE Equivalent Jobs.) It is clear that much more work needs to be done, to identify and rectify the disparities between job categories that exist.

It shouldn’t take an expensive lawsuit for employers to take a hard look at wage disparity, but unfortunately, it often does, or we might have seen more progress over the years. At the rate we’re going, the gap may never be closed, or certainly not in our lifetimes at least. In educating others about sexual harassment, the question is often posed, “Would you want your mother, daughter, or sister to be treated this way?” because it brings into perspective what blatant disrespect that harassment can be. Until we can ask the same question of those who make pay decisions, and transform what they now blithely accept as reality into the same fundamental outrage at the disrespect suffered by many female workers each pay period, it is unlikely that we will see significant changes.

More Information:

Workplace Fairness: sex discrimination

National Organization for Women Press Release

National Committee on Pay Equity

AFL-CIO: How Does Your State Rate?

Workers who have faced discrimination made illegal by federal law — age, race, sex, disability, color, religion, and national origin — will soon learn, if they have not already, that filing with the Equal Employment Opportunity Commission (EEOC) is generally a necessary first step towards pursuing a discrimination claim against their employer. To start this process, workers have previously been required to contact the nearest EEOC office. Now the EEOC, in an effort to improve efficiency and assist workers more effectively, has a centralized call center, the National Contact Center (NCC), based in Lawrence, Kansas. Although the proposal was controversial, and efforts were made to derail the new call center, since March 21, 2005, the NCC has been open for business and accepting calls from the public.

If you’ve faced the types of discrimination mentioned above that are made illegal by federal law, you can’t just file a lawsuit against your employer in court. First, you’re required to “exhaust” your claim, which means that before filing a lawsuit, you must submit your claim to the federal governmental agency empowered to address discrimination, retaliation and harassment claims, the EEOC, and/or a state agency with whom the EEOC has an agreement to share claims processing. For more information, see our site’s page on filing a discrimination complaint, selecting your state for the most relevant information.

Any individual who believes he or she has been discriminated against in employment may file an administrative charge with the EEOC. After investigating the charge, the EEOC determines if there is “reasonable cause” to believe discrimination has occurred. If “reasonable cause” is found, the EEOC attempts to conciliate the charge by reaching a voluntary resolution between the employee and employer.

EEOC also has a mediation-based alternative dispute resolution (ADR) program, which encourages all parties, with the assistance of a neutral mediator, to voluntarily participate in confidential deliberations that resolve discrimination issues in appropriate cases. If conciliation is not successful, the Commission may bring suit in federal court. As part of the administrative process, the EEOC may also issue a Right-to-Sue-Notice to the charging party, allowing the employee to file an individual action in court without the Agency’s involvement.

In order to file an administrative charge, employees have historically been required to locate the nearest EEOC field office. While employees could call the local office to just get basic information, the offices did not have employees devoted solely to call screening. Critics charged that this system meant that the agency’s investigators, mediators and lawyers spent too much time fielding calls and answering basic questions, which kept established cases from moving along as efficiently as needed. Cynthia Pierre, the EEOC’s director of field management programs, identifies the problem this way: “There were a lot of calls that weren’t getting answered. People would wait for days for messages to be returned. The technology was pretty obsolete or inadequate…. It was taking away from time we need to spend investigating and litigating” discrimination cases.” (See GovExec.com article.) The EEOC estimated that around 60% of calls to the field offices were of a basic entry-level nature that could be handled by employees outside of the individual field offices. (See Kansas City Star article.)

Now some of these calls will be fielded by the National Contact Center’s staff of 36, based in Lawrence, Kansas. For workers who dial (800) 669-4000 (or 800-669-6820 using a TTY for the hearing impaired), the NCC will provide immediate access to customer service representatives in 150 languages (via a link to Tele-Interpreters translation service) between 8 a.m. and 8 p.m. Eastern Time. An automated system with answers to frequently asked questions (FAQs) will be accessible on a 24-hour basis, seven days a week. The NCC also has a secured website with FAQs for those who would rather access content online. (See the NCC Support Site.) The EEOC selected the company of Pearson and Associates to oversee the pilot project creating the NCC, after reviewing the company’s work for around three dozen other governmental agencies.

Establishing the call center was a controversial decision, not without its critics. Last year, EEOC’s employee union, a local of the American Federation of Government Employees, was unsuccessful in its efforts to urge Congress to forestall the center’s creation, arguing that it would actually decrease efficiency because poorly trained workers would shuttle calls to local EEOC offices, and claiming that the proposal “could diminish the ability of the EEOC to perform its important mission of helping working Americans to fight back against discrimination in the workplace.” The National Employment Lawyers Association (NELA), WF’s allied organization, in testifying against various EEOC restructuring proposals, claimed that “sophisticated counseling during intake…is best done by investigators familiar with local issues.” (See Written Testimony of September 8, 2003 by L. Steven Platt.) However, efforts to stop the call center from being funded failed, and an 18-month pilot project is in place to evaluate the NCC’s effectiveness.

Centralizing call center functions will not replace all public contact with EEOC’s field offices, however. According to EEOC staff, at this time there is not an automated way to route calls from the field offices to the call center, so those who call the local field office numbers directly will still receive assistance locally. And the charge-filing process will still necessitate that a worker meet in person with an investigator at the local field office (unless waived due to distance or other reasons). The call center is trained to expedite cases where employees have a filing deadline (300 days in most states, but as little as 180 days in some states; for more information, click here) about to expire. However, before making any assumptions about deadlines, employees concerned about this issue may wish to contact their local office directly, or consult with an attorney knowledgeable in employment law.

While it is not required to have an attorney to pursue an administrative complaint with the EEOC, you should consult with an attorney prior to filing your charge, if possible. Just because the EEOC helps you file a charge of discrimination does not mean it meets all legal requirements. Further, EEOC personnel are generally not lawyers and cannot be expected to understand all the legal complexities that your case may present. Also, certain discrimination claims do not require an EEOC charge, and a lawyer can discuss all of your possible claims with you. Further, important legal strategy decisions often need to be made prior to filing a charge of discrimination. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file a charge with the EEOC.

It remains to be seen, and will be closely scrutinized over the next 18 months, whether the pilot project will meet the goals stated by the EEOC’s Chairperson, Cari M. Dominguez, of “serv[ing] the public better, faster and more efficiently.” (See EEOC Press Release.) For some if not most workers, it may very well expedite the process of gathering basic information. The interplay between the call center and local EEOC offices will make all the difference in this project’s effectiveness. Will workers who just need information get all of the information they need from the call center? Will workers who need to interact with the local field offices get passed along quickly and effectively? Will workers with valid complaints of discrimination be discouraged from filing those claims due to any factor in the new communications process?

For now, workers have two places to call to get basic information: the call center and their local field office. If in doubt about where to go or to whom to speak, remember that the most important thing is for workers to promptly ensure that their administrative claim is filed locally, which is the only way to protect the ability to pursue a discrimination claim in the future.

Workplace Fairness:
Federal Government Agencies
Filing a Discrimination Complaint

National Employment Lawyers Association:
Find a Lawyer

It used to be known as the American way: those who work hard get ahead in life. Those who didn’t work hard would be stuck at the bottom of the economic heap, and, so the story goes, it was their own fault. Now, the American workplace has begun a transformation where those who work the hardest are still often trapped at the bottom, and have increasingly fewer options for advancing to a point where the work will not be so difficult.

Beth Shulman, author of The Betrayal of Work: How Low-Wage Jobs Fail 30 Million Americans and Their Families, calls it “The Oprah Society.” She describes it as follows:

It’s inspiring to watch someone beat the odds. If you see the deck is stacked, their triumph is especially sweet. Day after day, in our made-for-TV society, that’s what we’re shown: inspiring exceptions—women and men who, by some miracle, overcome insurmountable barriers. They often weep as we do when we hear their tales of woe. Indeed, whether it’s addiction or affliction, layoffs or payoffs, their stories are meant to convince us “Hey, they made it, why can’t we?”

(See TomPaine.com article.) It all plays into the credo that “a few are chosen, and the rest of us are made to feel like we failed. If only we had tried harder, worked smarter, learned more, invested better, we’d be on TV for all to envy.” But the problem with that is that we’re creating very few avenues for folks to get ahead by working hard.

First, you have to be working period, and that can’t be taken for granted any more. It was reported last year that the unemployment rate for college graduates has now surpassed the rate for high-school dropouts. (See EPI Economic Snapshot.) So one of the most traditional means of dragging oneself up by the bootstraps — an education — is increasingly becoming meaningless.

Then, whether you have an education or not, you have to start somewhere: the entry-level job. Entry-level jobs used to be just that: primarily occupied by teenagers, part-time workers, or those with marginal job skills. We didn’t worry so much about the minimum wage, because those who were earning it weren’t relying on it to survive. That’s no longer true either: 72 % of workers who earn the minimum wage are age 20 or older, 10% of them are single mothers, and close to half work full time. (See EPI Minimum Wage Issue Guide.)

And despite their low wages, few can deny that most of the work is hard work. So much that doesn’t require hands-on physical labor is being outsourced or automated. And some of it, we’re now being asked to do ourselves, as consumers.

Ordinary people, it seemed, could operate gas pumps without causing explosions. They could check their own oil. They could fill their tires. They could then be persuaded to complete their purchases with the swipe of a card and be quickly out of the way with no help from any human being at all….Consumers were found to be more medically skilled than anyone had given them credit for. They could take their own blood pressure, give themselves injections and enemas, and starve themselves before surgery. Then they could find someone to drive them to the hospital at 6 a.m., wait, and then take their tottering bodies, still exhaling anesthesia, back to their beds at home where another friend could care for them. In short, they could do what nurses had once done, allowing hospitals to concentrate on investing more heavily in machines to do what doctors once did.

(See New York Times article.) Under the guise of being nice people, and helping out those with minimum wage jobs, we haven’t done them any favors: we’ve eliminated the low-paying jobs that weren’t so difficult after all, leaving the most difficult ones at the bottom of the wage spectrum. The wages are so low not because the work is much less demanding, but because it’s left to desperate people who haven’t been able to advance any other way. We’re not making that advancement terribly easy, either, with our societal assumption that it only happens to those who deserve it, rather than saying that all workers deserve the following, as Shulman points out:

These conditions are not an act of nature. We can make different choices. We could offer quality child care to give all our kids a fair start. We could insist our jobs provide at least a week of paid sick leave. We could raise the federal minimum wage—as a start to $7.25 an hour, an option our Congress just turned down last month. We could insist every American have affordable health care. We could ensure that every qualified young man and woman can afford to attend college and graduate without mortgaging their future. And at the end of one’s work life, we could make sure that all Americans have enough to support themselves.

And regardless of where you’re at on the economic spectrum, working hard isn’t leading to higher pay, either. It was just announced that for the first time in 14 years, wage growth is being outpaced by inflation: all the health care premiums workers are being forced to assume, and those out-of-control gas prices all mean that even the workers getting raises aren’t getting ahead — they’re merely treading water. (See Los Angeles Times article.)

A solution is not going to be easy, but when as fundamental an ideal as the American dream is being eroded, let’s hope that someone sits up and takes notice. No one argues with the premise that hard work should entitle workers to something more than stagnant wages at poverty level in this so-called “meritocracy” of ours, so our policy makers should be doing something about it soon. Otherwise, they’re going to have a lot of explaining to do to those who have been working non-stop, hoping that some day, they’ll be able to move beyond basic survival.

More Information:

Workplace Fairness: Short-Changed: The Income Gap
Blog: The Frontline Trench: The Meritocracy Myth
New York Times article: Falling Fortunes of Wage Earners

Everyone who works, should get paid, or there’s a problem, especially if you’re working for someone else. Not everyone faces workplace discrimination or needs family leave, but those who work for a living want to make sure that they are paid correctly for the hours that they work. If you have questions about getting paid, the “pay and hours” section of the Workplace Fairness website, www.workplacefairness.org, is for you.

Those who work on an hourly basis are generally entitled to the minimum wage. Those who are paid hourly are also generally entitled to overtime pay for hours worked over 40 in a week. Even if you’re salaried, however, you might be entitled to overtime, so check our exemptions page to make sure your overtime is being handled properly. Both the overtime and exemptions pages reflect changes to overtime regulations that went into effect last August, so they are a valuable resource for workers and advocates alike. Many thanks are due J. Derek Braziel of Dallas, who provided some of the content from his firm’s OvertimeLawyer.com page for our use.
Not everyone gets paid on an hourly or salaried basis, so if you earn tips or commissions, you’ll want to check out those pages. Wondering about what counts as work time that you should be paid for? See our “what is ‘work time?‘” page. If you have questions about getting paid for time you’re not working, see our pages on comp time, vacation pay, and meal and rest breaks.

If your pay isn’t what it should be, due to deductions from your paycheck, you’ll want to see our deductions from pay page to see if the deductions are being handled correctly. If you’re not getting paid at all, you’ll definitely be interested in our unpaid wages page. All good things (and even some bad ones too) must come to an end, so if you’re leaving your job, see our final pay page to make sure your last check is squared away properly.

If all else fails, and you’re not being paid what you’re owed, then you’ll need our filing a complaint page, which explains what you’ll need to do if your employer is not following the law.

Armed with the information in the pay and hours section, you can make sure that you are receiving the wages due you for the work you perform each week, and will learn more about what you can do if you aren’t getting paid properly. Unscrupulous employers who do not comply with wage and hour laws can only get away with it if their employees don’t know any better, so educate yourself today on the law!

More Information:

U.S. Department of Labor: Wages Information

Workplace Fairness: State Government Agencies
(contains links to state wage and hour enforcement agencies)

OvertimeLawyer.com

Last week, the Supreme Court finally decided the issue of whether the Age Discrimination in Employment Act (ADEA) allows groups of older workers to bring what are known as “disparate impact” cases, in the case of Smith v. City of Jackson. While the decision was positive in that it did not rule these types of cases out completely, it will most likely be unclear for a while exactly what types of cases employees will be able to win based upon this decision.

It’s hardly paranoid to believe that there is discrimination out there that is subtle enough that it is difficult to prove legally. As Laurie McCann of the AARP points out, before last week’s ruling, job seekers filing a lawsuit “would have had to prove that the employer crafted that policy because they wanted to screen out older workers. That proof of intent is very hard to come by even if it was there. You’d be very lucky if in discovery you found the memo or something that said that was their intent.” (See New York Daily News article.)

One of the ways that lawyers have been able to ferret out discrimination has been to bring what is known as a “disparate impact” case. Rather than having to prove that someone in a position of authority intended to discriminate against the employee bringing the case, using a disparate impact theory allows groups of workers to show that a particular policy more adversely affects a protected group than a comparable non-protected group of workers.

For example, there are a number of cases where African-Americans have been able to show they were adversely affected by a testing or promotional process. Rather than showing that someone administering the test created it for the purpose of screening out African-Americans, those affected could show that the process weeded out African-Americans in numbers disproportionate to their participation in the process. This prevents companies from developing seemingly-neutral policies, but nonetheless using them to screen out certain groups of employees. However, race discrimination is evaluated under a different law, Title VII, than age discrimination, which is made illegal by the ADEA. The Supreme Court had not yet spoken on whether age discrimination cases could be brought as disparate impact cases, and lower courts around the country were divided on whether it was legally possible to do so.

For older workers, disparate impact issues often arise in mass layoff or “reduction-in-force” situations, where the group of those laid off contains more older workers, and the group of those retained contains more younger workers. Another common situation involves the interplay of years of service and salaries. Since years of service often, but not always, correlates with age, it can be tricky to determine whether a particular practice tied to years of service serves as a proxy for age discrimination.

That was the situation in Jackson, Mississippi, where the city made salary decisions based upon years of service. The City recognized that it would be unable to bring in as many less-experienced workers at the salary level it was offering, and so raised salaries for workers with five years or fewer experience at a greater percentage than salaries for workers with more than five years experience. The goal was to bring starting salaries in line with other departments in the region, so that the department could remain competitive in hiring. There was perhaps even an unspoken assumption that if someone had remained with the department for five years or more, that officer was more likely to remain loyal, despite the salary, and stick with the department to take advantage of seniority and accrued benefits, rather than starting over somewhere else. While there were some officers over 40 that had been with the department less than five years and thus received a greater pay increase, most of those over 40 had enough experience that they received the lesser increase.

A group of employees over 40, unhappy with their pay scale, claimed that the City’s move was discriminatory on the basis of age. They claimed both disparate treatment and disparate impact, claiming that the City intended to discriminate against older workers, but even if it didn’t intend to do so, the City’s policy still had an adverse impact on the older officers. None of the lower courts agreed, and rejected their case at the trial court and appellate court (the 5th Circuit Court of Appeals.) However, the lower courts, in doing so, rejected the idea that the officers could bring a disparate impact case, so they appealed to the U.S. Supreme Court, both to see if the Court would overturn the result, and also to resolve the conflict between courts over the applicability of the disparate impact theory.

This case represents how fractured some of the Court’s decisions can be. All eight justices participating (Chief Justice Rehnquist, who has been ill for several months, did not participate) agreed that the officers did not successfully prove their case. However, the justices sharply disagreed about why that was. Five justices (Stevens, Souter, Ginsberg, Breyer, and Scalia (the most surprising vote)) agreed that plaintiffs could not prove their case, but did agree that other older employees should be allowed to bring an ADEA lawsuit using the disparate impact theory. However, Scalia chose different reasons to reach his conclusion in favor of disparate impact claims than the other four justices. The other three justices (Thomas, Kennedy, and O’Connor) dissented, arguing that the disparate impact theory should not not be recognized under the ADEA.

Why did the older officers lose? One reason why the ADEA is different from Title VII is that an exception is permitted for “reasonable factors other than age” or RFOA. The RFOA exception takes into account that there are factors which often closely correlate with age, but are not the same as age itself, such as years of experience and seniority. This exception takes into account that unlike with race, age may have “relevance to an individual’s capacity to engage in certain types of employment.” The majority of those voting on the Court believed that the City of Jackson, in taking seniority and rank into account when determining pay scales, was relying on a reasonable factor other than age.

However, in making the disparate impact theory available for other people to use, the Court recognized language in both the ADEA (borrowed from Title VII) and its prior Title VII rulings that assumed that disparate impact claims were available. Since these types of cases have been ruled to be permissible under Title VII, and the ADEA’s language was similar, the Court reasoned that they should be available under the ADEA as well. Justice Scalia took a different tack. He reasoned that the theory should be available, for the additional reason that the EEOC, the government agency with authority to interpret the ADEA, the Equal Employment Opportunity Commission, had already interpreted the law to include disparate impact claims. He accordingly thought that the courts should defer to that interpretation. His opinion seems to have been written for the purpose of disagreeing with Justice O’Connor’s dissent, as several paragraphs have Justice O’Connor’s dissent as the focus of their contrary analysis.

In the dissent, Justice O’Connor argues that neither the text of the ADEA nor the EEOC’s interpretation of the law are sufficient to indicate that Congress intended to include disparate impact claims when passing the ADEA. The dissent claims that there are enough significant differences between the ADEA and Title VII to warrant against adopting the disparate impact theory, merely because it had been successfully adopted in Title VII cases.

For now, workers can bring disparate impact cases, and still attempt to show that the policies and practices adopted by employers are not “reasonable factors other than age.” This is certainly preferable to not being able to make the argument at all. As Laurie McCann of the AARP notes, “The good thing is that any time (employers) craft a policy, they’re going to have to take a look at it and make sure it doesn’t have a disparate impact on older workers. That’s a good thing … they’re going to have to review all their policies and practices and see if they have a statistical impact on older workers. They’re already doing that for race and gender.” (See New York Daily News article.)

However, it remains to be seen what kinds of policies courts will strike down because they do not represent RFOAs. It may very well include, as one commentatory suggested, “layoffs that seem to target higher-salaried employees or those soon eligible for retirement benefits. Or an employment test that measures computer skills — something older workers tend to have less of — when the position at hand doesn’t require using a computer. ” (See San Francisco Chronicle article.)

Or the case may simply make it so that employers can successfully defend most cases by claiming “business necessity,” which the Court recognizes is a RFOA. One article suggests that “the decision will change how cases are argued, but the balance of power between employers and their older employees may well stay the same. And age-discrimination cases will remain difficult to win.” (See Miami Herald article.)

It will be up to older workers and their advocates to fight back when policies adversely affect them without harming younger workers in the same way. Given that more than half of our workforce is already over 40 — 75.8 million Americans — and will be over 40 for many years to come, there will likely be ample opportunities to test the strength of the Supreme Court’s opinion.

More Information:

Workplace Fairness: age discrimination
National Employment Lawyers Association and Trial Lawyers for Public Justice: Amicus Brief in Support of Petitioners
(written by Workplace Fairness and NELA Board Member Cathy Ventrell-Monsees)
AARP Foundation Litigation