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Health Reform Is In The House

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Yesterday, three committees in the House – Education and Labor, Ways and Means, and Energy and Commerce – came together to release a health reform bill that goes far in fixing American’s broken health care system. The robust bill (America’s Affordable Health Choices Act) guarantees that everyone is covered and it promotes shared responsibility among individuals, employers, and the government. It effectively provides quality and affordable health care for all:


Improved Affordability so that no one is priced out of coverage and care. In a recent poll,
more than half of Americans families said they skipped health care because it was too expensive. America’s Affordable Health Choices Act puts the brakes on this trend by offering sliding scale subsidies (available to families of four earning up to $88,000 this year — 400% of the federal poverty level) and capping out-of-pocket expenses. It also expands Medicaid to 133% of the poverty level (about $24,400 for a family of three in 2009), allowing millions of low-income Americans who are not currently eligible for Medicaid to gain coverage. What’s more, the bill will close the Medicare doughnut hole over time, helping seniors and those with disabilities pay for life-preserving medications.

Choice of Health Plans between your current plan, private plans, and a robust public plan. While many Americans are satisfied with their current health plan and doctor, some are not. The House bill establishes a national health insurance exchange (a marketplace) that would allow people to keep coverage, even when changing jobs, and it would hold down overall costs by reducing administrative overhead. While the proposed exchange is national, states can opt out and form their own state-based exchanges. One of the many plans offered in the exchange will be a strong public health insurance plan to help level the playing field, and to provide real competition for private insurers who often monopolize certain areas.

Fair Insurance Premiums for Everyone. Currently, insurance companies offering coverage to individuals and small businesses are loosely regulated by a patchwork of state regulations; in most states, they can get away with practices that harm consumers’ financial and physical health for their own gain. These practices will no longer be allowed. Under the House bill, insurers cannot discriminate against women or the ill by denying them coverage based on pre-existing conditions (guaranteed issue) or charge higher premiums based on health status or gender (modified community rating).

Value for Your Premium Dollars. In the majority of states, there are no protections in place that ensure consumers, who are buying coverage in the individual market, that their premiums will be used for medical services rather than for insurance company profit, administration, and advertising. In fact, without adequate consumer protections, insurance companies sometimes spend only 60 cents of every premium dollar on actual health care. Health reform will require health insurers to spend a minimum amount of their premium dollars-85% in the House bill-on medical care. If they do not spend a large enough proportion of the premiums collected on medical care, they must issue refunds to consumers. 

Security that coverage can’t be lost or taken away. Our system is wrought with uncertainty, especially in these tumultuous economic times. As President Obama said, “The House proposal will begin the process of fixing what’s broken about our health care system, reducing costs for all, building on what works, and covering an estimated 97% of all Americans. And by emphasizing prevention and wellness, it will also help improve the quality of health care for every American.” 

The other good news? The bill sponsors have identified sound financing mechanisms: savings in Medicare and Medicaid and a surtax on the wealthiest 1.5 percent of Americans.

America’s Affordable Health Choices Act is something to be proud of. With 6,000 people losing coverage each day, it is time we enact this strong piece of legislation.

A summary of the bill can be found here.

Full text of the bill can be found here.

Julia Eisman: Julia Eisman is the Online Advocacy Coordinator at Families USA, a national nonprofit that works to achieve quality and affordable health care for all. Julia worked to launch, and now manages, StandUpforHealthCare.org, a project of Families USA, where ordinary Americans can gain knowledge and take action around health care reform. She earned her BA from the University of Texas in Austin and her MPA from American University.

This article was originally posted on Stand Up for Health Care on July 15, 2009 and is reprinted here with permission from the author.


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The Employee Free Choice Act: From 2003 to Today

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Members of Congress soon will cast votes that show us where they stand on the Employee Free Choice Act. As key senators engage in negotiations over the bill, supporters of workers’ freedom to form unions aren’t backing down on three key principles:

* Workers need to have a real choice to form a union and bargain for a better life, free from intimidation.

* We have to stop the endless delays and make sure workers can get a fair first contract.

* There have to be real penalties for violating the law.

Over the past few months, opponents of the Employee Free Choice Act have more than once declared the bill dead, but in fact we’re still working hard to to ensure labor law reform happens this year. We’ve come along way from where we were several years ago.

 

Here’s a timeline from 2003, when the AFL-CIO Executive Council offered a resolution in support of labor law reform, to yesterday’s seating of Sen. Al Franken, whose first move was to co-sponsor the Employee Free Choice Act.

…legal reform that protects the free and fair choice of employees to form a union without interference from management and enables more workers to enjoy the benefits of collective bargaining.

  • Nov. 21, 2003: Rep. George Miller introduces H.R. 3169, the Employee Free Choice Act, in the House. Sen. Edward Kennedy introduces the same bill as S. 1925 in the Senate. Both were denied a committee vote by the Republican majority.
  • Dec. 10, 2003: Tens of thousands of union members, elected officials, religious leaders and community activists across the nation took part in more than 90 events in 72 cities, united by one message: Workers’ rights are human rights. The nationwide mobilization is the first in a series of annual actions in support of the Employee Free Choice Act held on Dec. 10, International Human Rights Day, the anniversary of the ratification of the Universal Declaration of Human Rights in 1948.
  • April 19, 2005: Miller introduces the Employee Free Choice Act as H.R. 1696 in the House and Kennedy introduces it as S. 842 in the Senate. Again, both bills are blocked by the Republican majority and don’t receive a committee vote.
  • Dec. 10, 2005: Thousands of union members rally across the country in support of the workers’ freedom to form unions and bargain to commemorate International Human Rights Day.
  • Nov. 7, 2006: In the 2006 congressional elections, the union movement makes big strides in electing pro-working family, pro-Employee Free Choice Act candidates, with new pro-worker majorities in both the House and Senate.
  • Dec. 8-9, 2006: The fight for the Employee Free Choice Act takes center stage at the AFL-CIO Organizing Summit.
  • Feb 5, 2007: Miller introduces H.R. 800, the Employee Free Choice Act of 2007, in the House.
  • March 29, 2007: Kennedy introduces S. 1041, the Employee Free Choice Act of 2007 in the Senate.
  • March 1, 2007: U.S. House passes the Employee Free Choice Act in a 241-185 vote.
  • June 26, 2007: U.S. Senate votes 51-48 for cloture on the Employee Free Choice Act, which would allow it to be considered for a simple majority vote on the Senate floor. Unfortunately, 60 votes were required for cloture (agreement to vote on a bill), so a Republican minority in the Senate was able to block consideration of the bill.
  • March 4, 2008: The union movement kicks off the Million Member Mobilization campaign to gather support for the Employee Free Choice Act.
  • Nov. 4, 2008: Despite a desperate multi-million dollar corporate campaign against pro-worker candidates, the union movement wages its most successful-ever political mobilization campaign, helping to elect even more working-family friendly lawmakers to the House and Senate and Barack Obama, a Senate co-sponsor of the Employee Free Choice Act, to the White House.
  • Feb. 4, 2009: Union members and allies deliver some of the 1.5 million signatures they’ve gathered in support of the Employee Free Choice Act to Capitol Hill—exceeding the goals of the Million Member Mobilization campaign.
  • March 10, 2009: Employee Free Choice Act introduced in the House (as H.R. 1409), with 225 co-sponsors, and as S. 560 in the Senate, with 41 co-sponsors.

In short, we’ve pursued this critical legislative since Bush ran the nation along with a Republican Senate majority in Congress, until today, when our nationwide political mobilization resulted in the election of President Obama, Vice President Joe Biden and appointment of Labor Secretary Hilda Solis, all of whom expressed support for the bill.

As the AFL-CIO’s Stewart Acuff noted at a Netroots Nation event last month, it’s amazing to see how far we’ve come. But the opposition is well-funded and aggressive, and the broad coalition supporting the Employee Free Choice Act will need to fight harder than ever to make sure we get labor law reform that helps workers:

We started this six years ago, and I thought it was going to be a 20-year fight. We’ve accomplished so much in the face of such attacks, and all the money they’ve been able to spend has not been able to break it.

The campaign is vibrant and active, and all the forces of corporate America can’t stop it—and they’ve tried everything in their playbook.

Seth Michaels: Seth D. Michaels is the online campaign coordinator for the AFL-CIO, focusing on the Employee Free Choice campaign. Prior to arriving at the AFL-CIO, he’s worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. He also spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe.

This article was originally posted at the AFL-CIO Blog and is reprinted here with permission from the author.


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When Will The Recovery Begin? Never.

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The so-called “green shoots” of recovery are turning brown in the scorching summer sun. In fact, the whole debate about when and how a recovery will begin is wrongly framed. On one side are the V-shapers who look back at prior recessions and conclude that the faster an economy drops, the faster it gets back on track. And because this economy fell off a cliff late last fall, they expect it to roar to life early next year. Hence the V shape.

Unfortunately, V-shapers are looking back at the wrong recessions. Focus on those that started with the bursting of a giant speculative bubble and you see slow recoveries. The reason is asset values at bottom are so low that investor confidence returns only gradually.

That’s where the more sober U-shapers come in. They predict a more gradual recovery, as investors slowly tiptoe back into the market.

Personally, I don’t buy into either camp. In a recession this deep, recovery doesn’t depend on investors. It depends on consumers who, after all, are 70 percent of the U.S. economy. And this time consumers got really whacked. Until consumers start spending again, you can forget any recovery, V or U shaped.

Problem is, consumers won’t start spending until they have money in their pockets and feel reasonably secure. But they don’t have the money, and it’s hard to see where it will come from. They can’t borrow. Their homes are worth a fraction of what they were before, so say goodbye to home equity loans and refinancings. One out of ten home owners is under water — owing more on their homes than their homes are worth. Unemployment continues to rise, and number of hours at work continues to drop. Those who can are saving. Those who can’t are hunkering down, as they must.

Eventually consumers will replace cars and appliances and other stuff that wears out, but a recovery can’t be built on replacements. Don’t expect businesses to invest much more without lots of consumers hankering after lots of new stuff. And don’t rely on exports. The global economy is contracting.

My prediction, then? Not a V, not a U. But an X. This economy can’t get back on track because the track we were on for years — featuring flat or declining median wages, mounting consumer debt, and widening insecurity, not to mention increasing carbon in the atmosphere — simply cannot be sustained.

The X marks a brand new track — a new economy. What will it look like? Nobody knows. All we know is the current economy can’t “recover” because it can’t go back to where it was before the crash. So instead of asking when the recovery will start, we should be asking when and how the new economy will begin. More on this to come.

Robert Reich: Robert B. Reich has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He also served on President-Elect Obama’s transition advisory board. He has written twelve books, including The Work of Nations, which has been translated into 22 languages; the best-sellers The Future of Success and Locked in the Cabinet; and his most recent book, Supercapitalism. Mr. Reich is co-founding editor of The American Prospect magazine. His commentaries can be heard weekly on public radio’s “Marketplace.”

In 2003, Reich was awarded the prestigious Vaclav Havel Vision Foundation Prize, by the former Czech president, for his pioneering work in economic and social thought. In 2008, Time Magazine named him one of the ten most successful cabinet secretaries of the century. He received his B.A. from Dartmouth College, his M.A. from Oxford University where he was a Rhodes Scholar, and his J.D. from Yale Law School.

This article was originally posted on Robert Reich’s Blog on July 09, 2009 and is reprinted here with permission from the author.


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Report: Security Screening Process Flawed, Leaves Dockworkers Jobless

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Thousands of longshore workers, truck drivers and other workers at ports across the nation are out of work, not because of a staggering economy, but because they are caught up in a backlogged, inefficient and often inaccurate screening process for background security checks.

According to a new report from the National Employment Law Project (NELP), the federal Transportation Security Administration’s (TSA’s) post-Sept. 11 port worker background checks have put thousands of otherwise qualified and experienced port workers on the streets instead of the docks until they gain their security clearance.

Most of the workers caught in this bureaucratic limbo are members of the International Longshore and Warehouse Union (ILWU), Longshoremen (ILA) and Teamsters (IBT).

 

The report is the first evaluation of the worker protections in TSA’s Transportation Worker Identification Credential (TWIC). It finds that thousands of workers—disproportionately African American and Latino men—have had to wait an average of seven months while their applications are reviewed, leaving them unable to work and support their families in the midst of a devastating recession.

According to the report, “A Scorecard on the Post-9/11 Port Worker Background Checks,” more than 10,000 workers had lost their jobs while awaiting TSA approval of their TWIC cards after the April 14 compliance deadline passed. Laura Moskowitz, a NELP attorney who led the study, says:

Due to serious problems with the FBI’s records, insufficient staffing and poor TSA screening protocols, there have been major processing delays for workers at ports, which means that large numbers of hard-working families are being left out in the cold at the worst possible time.

To be approved for access to the ports, applicants are subject to criminal background checks using the FBI’s database, immigration status and other security checks. However, the report notes that 50 percent of the FBI’s rap sheets are incomplete or out of date. Contrary to the federal law, TSA denies credentials in an overly broad range of cases such as open arrests, even if they have been dismissed or addressed.

When a worker is denied a security clearance and decides to appeal, Moskowitz says:

TSA and the FBI put the entire burden on the worker to collect the necessary information to clear their records and navigate the process all on their own, which then leaves thousands of workers falling through the cracks of the TWIC program.

It also finds that while worker protections in the program’s appeal process take far too long, eventually almost all workers win their credential cards on appeal. More than 24,000 workers, largely African American and Latinos, were able to keep their jobs with the help of the special protections for workers who are initially denied a credential card based on their record.

The report offers a series of recommendations for TWIC reform, including expediting the cases of workers who have been shut out of the ports, tracking down missing FBI information before issuing denials, adopting strict timeframes for processing applications and better handling of applications from foreign-born workers.

Click here for a look at the full report.

Mike Hall: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. He carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He’s also worked as roadie for a small-time country-rock band, sold blood plasma, and played an occasional game of poker to help pay the rent. You may have seen him at one of several hundred Grateful Dead shows. He was the one with longhair and the tie-dye. Still has the shirts, lost the hair.

This article was originally posted at the AFL-CIO Blog and is reprinted here with permission from the author.


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SEIU Demands Corporate Lobbyists Take Down Deceptive Ads on Employee Free Choice Act

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Today the Service Employees International Union (SEIU) sent letters to television stations in Nebraska and Arkansas demanding that deceptive ads about the Employee Free Choice Act be taken down immediately. The ads are paid for by the Employee Freedom Action Committee (EFAC), the political action committee of anti-worker front group Center for Union Facts.

Said SEIU Political Director Jon Youngdahl:

“Arkansans and Nebraskans are losing their jobs, their benefits and their retirement security, yet the same greedy CEOs and corporate lobbyists who helped tank the economy aren’t satisfied.

“Now, they want to take away workers’ rights to bargain for better working conditions and higher wages. In order to do so, they’re reduced to creating vicious and false ads that portray union members as mobsters. They need to stop this deceptive ad campaign and remove these lies from the air.”

In a letter sent to television stations in both states today, SEIU debunked the false claims made in EFAC’s ads, writing in part:

The ad falsely claims that organized workers do not have a say in negotiations over their wages and benefits, when nothing could be further from the truth. It is unorganized workers who have no mechanism to negotiate with their employer over their wages and benefits. At the same time, union members typically vote on whether to ratify their contracts.

Moreover, the ad falsely implies that employers are handing out raises to their employees with the union that is standing in the way, when the exact opposite is true. The fact is that union workers have higher wages and better benefits than non-union workers, which is why more than half of all workers–nearly sixty million–would join a union if they could. Indeed, according to the Center for American Progress Action Fund, union workers earn significantly more on average than their non-union counterparts, are nearly 54 percent more likely to have employer-provided pensions, and are 28 percent more likely to be covered by employer-provided health insurance. In 2007, union workers earned 30 percent more on average than non-union workers.

On Thursday, Media Matters also deconstructed the ads, deeming the campaign “inaccurate and offensive.”

EFAC, like its affiliated organization Center for Union Facts, is run by corporate lobbyist Rick Berman. Berman, former labor counsel at the US Chamber of Commerce, is a virulent anti-worker and anti-consumer activist. According to a profile of Berman on NPR:

Berman’s firm also runs the American Beverage Institute, which argues that drunk driving is over-hyped; the Center for Consumer Freedom, which argues that the obesity “epidemic” and mad cow disease, among other things, are over-hyped; and the Employment Policies Institute, which advocates against minimum wage increases.

View the letter below:

Letter to Arkansas TV Stations re: Inaccurate Advertising

Michael Whitney: Michael Whitney is an online organizer with the Service Employees International Union (SEIU). Michael manages the online campaign for the Employee Free Choice Act as part of SEIU’s Change that Works program. He got his start in online politics on Howard Dean’s presidential campaign as one of the co-founders of Generation Dean, a web-based youth outreach organization. Michael is a contributor to techPresident.com, the Huffington Post, and his overly active Twitter feed.

This article originally appeared on SEIU Blog on July 10, 2009 and is reprinted here with permission from the source.


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HR – Friend or Foe?

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Last week a friend stopped by who’d just been riffed by Microsoft (reduction in force, for the luckily uninitiated).
 
She spoke angrily about the HR woman who answered most of her questions wrong concerning her severance and departure from the company. Initially my friend was told there was no severance beyond six weeks and her layoff would leave her just short of the date where she’d be fully invested in her pension. Later she talked to a more senior HR staffer who reassured her that she would receive enough additional time to receive her pension.
 
Misinformation. It happens all the time. But I can think of few times more painful than when you are getting laid off to get bad information. In football the term for this would be piling on. And yet I hear from people all the time who have to go through an experience that would be difficult enough by itself, getting laid off, but then the salt water is poured in their wounds by insensitive or incompetent HR or management staff.
 
Let me lay a card or two on the table. I like the vast majority of Human Resources people I’ve met through the years. I’ve spoken at HR conferences, I’ve written for HR publications and I consider many HR people to be my friends. This shouldn’t be surprising because I like people with heart.
 
It pains me when people in HR forget that they need to be the bridge between the company and its people, rather than just serving as an agent for the company.
 
Let me explain. I once spoke at a HR conference. I began by asking if audience members grew up with an adult’s table and a children’s table at big family events like Thanksgiving. Most of the audience smiled and said they had.
 
I then asked a simple question, as an HR person, which table do you sit at where you work, the adult’s table or the children’s table? For the rest of the session, every person who spoke began by saying that they sat at the adult’s table and then they explained why. “I have a great relationship with the CEO and board.” “I attend executive staff meetings.” “I report directly to the CEO,” were typical responses.
 
Oh, there was one exception. At the very end of the session one HR director said that she preferred the children’s table because you could play with your food, there weren’t a bunch of annoying rules and meals were always fun.
 
The correct answer concerning which table is either “both” or “neither.” The most effective HR people must be able to mix it up at both the adult and children’s table, but they should never allow just one audience—executives or employees—to dominate their thinking. Because, to be effective, they need to be a bridge between both groups.
 
It is tough to have to fit in both in the rarefied air at the top of the corporation and in the trenches where the work really gets done. Let’s just give thanks that there are people out there who can.
 
QUOTE.

“The art of being wise is the art of knowing what to overlook.” William James

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.


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Employee Retaliated Against for Blogging: Bloggers Beware

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We have all heard about employees getting into hot water because of their blogs and online activities:

  • the Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo
  • the Google employee who speculated online about his employer’s finances  
  • the Burger King executive who used his middle school-aged daughter’s online identity to attack a farmworkers’ advocacy group that was trying to increase pay and improve conditions for tomato pickers
  • the computer worker fired because he posted a photograph of his company’s loading dock receiving a rival’s shipment of computers

There’s even a term for it: DOOCED  — which means getting fired because of something that you wrote in your weblog.

(“Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here’s what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in “trusting mentor relationships” with less experienced teachers in order to give them “honest, critical and private feedback.”

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here’s one of Richerson’s blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice … and a reluctant one at that. I truly hope that I have to eat my words about this guy…. But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him…. He has a reputation of crapping on secretaries and not being able to finish tasks on his own…. And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community…. Mighty White Boy looks like he’s going to crash and burn

You don’t have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson’s blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

Richerson lost her case in the federal district court and the Ninth Circuit Court of Appeals affirmed.

The Court held that the “legitimate administrative interests” of the school district overweighed Richerson’s right of free speech under the First Amendment. According to the opinion:

It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect [on the performance of her duties]. [Her supervisor] provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future.

Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. [Her supervisor] need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty… .

Accordingly, the district court did not err in concluding that the legitimate interests of the School District outweighed Richerson’s First Amendment interests in not being transferred because of her speech.

The decision is correct with respect to the current state of public employee speech law, according to Paul Secunda, one of the law professors who writes on this topic but the legal test should be changed. As Professor Secunda wrote:

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework. It is almost like we have constitutionalized the heckler’s veto in this area of the law and that doesn’t make a whole lot of sense.

So what would I do instead, you ask? I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment’s protection in the first place. Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

For those who may be interested, Professor Secunda wrote an excellent law review article: Blogging While(Publicly)Employed: Some First Amendment Implications which can be found at his post on Workplace Prof Blog.

Of course only government employees have limited First Amendment protections for blogging about work. It may come as a great surprise to many that private employees have no Constitutional free speech protection at work.

But, according to Professor Secunda,  private employees may be protected under Section 7of the National Labor Relations Act. (NLRA).  Under the NLRA  employees are free to engage in concerted activities in the workplace for their “mutual aid and protection.” Therefore, according to the argument, when employees are blogging about common workplace issues, they are engaged in protected, concerted activity under the Act. It sounds like a very good argument to me.

In addition some states have off-duty conduct statutes which generally prohibit employers from terminating employees for engaging in lawful conduct outside of the workplace. Some argue that these statutes may protect bloggers(depending in part on what they are blogging about).

Other employee bloggers have argued for protection under common law tort theories such as invasion of privacy. Many employers, however, have issued policies making sure that there is no expectation of privacy on the part of the employee with respect to blogging at work.

In sum, blogging at work, and blogging about work, are really two different topics. Employee rights may differ depending on where employees are doing the blogging — on company time, or on private time — and what they are blogging about.

In both of these circumstances, employers clearly have legitimate concerns about the content of employee blogs when employee bloggers:

  • reveal confidential/propriety information
  • improperly utilize a company logo or trademark
  • harass, intimidate, and discriminate against co-employees

These concerns can and should be addressed by appropriate corporate policies which protect legitimate interests without demoralizing employees or creating a repressive workplace environment.

In the meantime, since the law is quite undeveloped and the waters uncharted in this area, both employers and employees need to use common sense and tread carefully.

Ellen Simon: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This article was originally posted on Ellen Simon’s Employee Rights Post on July 6th. It is reprinted here with permission from the author.


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An American Scandal: The Minimum Wage

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The minimum wage is a scandal. It masks poverty. It must be dramatically raised.

On July 24th, the minimum wage will rise to $7.25 an hour. I applaud people who worked hard to pass the three-step hike. The new level will put some extra money in the pockets of millions of Americans and, modestly, bump up wages that hover above the minimum wage because some employers will want to keep workers they value.

But let’s be honest: the minimum wage is an American scandal. It is a wage that makes us think that we have set a reasonable floor for wages so employers do not exploit people.

But, the minimum wage IS a poverty-level wage. At the grand sum of the new $7.25 per hour, if you worked every single week, every day, you would earn $14,645 a year–with likely no health care, no retirement, no vacation days, no sick days. By comparison, the federal POVERTY LEVEL for a family of three is $17,600–a number that is outdated because it doesn’t take into account the real cost of living. But, even that number is higher than what a person would earn at the new minimum wage.

That is a scandal.

The minimum wage should be raised to $10 an hour, to be followed by additional hikes in the minimum wage so that it begins to reflect both the real cost of living and the incredible productivity of American workers that has not been reflected in their wages over the past 30 years. This is a proposal advocated by a variety of organizations, including Let Justice Roll.

Yesterday, I debated the minimum wage issue on CNBC:

What is startling to me, both from this recent debate and other discussions on the topic, is the continued lies that are spread about who “benefits” from the minimum wage and what truly contributes to a healthy economy.

Here are some facts (drawn from various sources, including the Economic Policy Institute):

Almost 10 percent of the workforce is affected by the minimum wage, either directly or indirectly (“indirectly” means that a rising minimum wage often increases wage levels just above the new minimum wage).

It isn’t true that the minimum wage is just a “starting wage” that people move out of, or that it is a wage just for teenagers working summer jobs or some other false argument. Four out of five minimum-wage workers are adults, and almost 3 in five of those are women. More than half work full-time. A quarter of minimum-wage workers have kids under the age of 18 and 1.2 million are single parents.

It also simply false to say rises in the minimum wage have a large, negative effect on jobs–meaning, that companies have to cut jobs because of the increased cost of a higher minimum wage. There is a logic here, as EPI points out:

“New economic models that look specifically at low-wage labor markets help explain why there is little evidence of job loss associated with minimum wage increases. These models recognize that

employers may be able to absorb some of the costs of a wage increase through higher productivity, lower recruiting and training costs, decreased absenteeism, and increased worker morale.”

But, we should only be defending the minimum wage, in my opinion, as a concept–not praising the level that it stands at. It must be far higher.

So, what is going on here?

The truth is that the scandal of the minimum wage is part of the larger picture of a decades-long robbery of the American worker. The economy that we live in thrives on the backs of people who work for poverty-level wages.

I’ve made this point before: productivity has skyrocketed over the past 30 years but wages have remained essentially flat. Some of that productivity did come from technology advances. But, most of it came because workers labored harder than ever, partly out of fear of losing a job in an economy that has forced people to pile up debt and rely on credit cards to survive.

The astounding wealth hoarded by CEOs and the top one-tenth of one percent of Americans was built up on the backs of hard labor and poverty-level wages. We do not have the slave-labor conditions seen in some other countries around the world. But, without question, the wealth of the country has been created by millions and funneled to a few.

Had the minimum wage tracked productivity over that period of time, the minimum wage should be $19 an hour.

I have also argued that the minimum wage scandal is far more important than the Bernie Madoff-type scandals. My friends, we got into the financial crisis we are in precisely because of the theft of wages of the American worker. Oh, how the free marketeers rejoiced at the decline of unions and the orgy of deregulation. But, as political leaders of both parties stood silent and were swamped by campaign cash from Wall Street and corporate interests, workers’ wages were pummeled.

And, then, what was left? An economy where people had to finance their lives through credit cards and, then, home equity–all illusions of wealth that are now gone.

So, now what? How do people like the CNBC talking heads and our political leaders, who still do not recognize wage collapse as the number one reason for our economic debacle, envision us reviving a decent standard of living for millions of people?

I say that one step is clear: a $10-an-hour minimum wage in 2010 as a small down-payment and a first step towards pushing wages back to a moral level.

Jonathan Tasini: Jonathan Tasini is the executive director of Labor Research Association. Tasini ran for the Democratic nomination for the U.S. Senate in New York. For the past 25 years, Jonathan has been a union leader and organizer, a social activist, and a commentator and writer on work, labor and the economy. From 1990 to April 2003, he served as president of the National Writers Union (United Auto Workers Local 1981).He was the lead plaintiff in Tasini vs. The New York Times, the landmark electronic rights case that took on the corporate media’s assault on the rights of thousands of freelance authors.

This article was originally posted on Working Life on July 7, 2009 and is reprinted here with permission from the author.


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Lily Ledbetter’s Fair Pay Fight Continues

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In a recent Letter to the Editor in the New York Times, Lilly Ledbetter reminded all of us that Congress still has some unfinished business when it comes to ensuring fair pay for women. Specifically, she mentioned the importance of passing the Paycheck Fairness Act – a bill that aims to strengthen current laws against wage discrimination and provides tools to enable the federal government more proactively address it.

It’s an unfortunate reality that pay discrimination persists nearly half a century after the Equal Pay Act outlawed the practice. When women aren’t paid what they are owed, they suffer and so do their families – in income, benefits and retirement security.

Lilly’s determination and fortitude is an inspiration for all of us to continue fighting for pay equity. As Lilly herself has said so many times before, this fight is about ensuring that our daughters and granddaughters will get a better deal. She has traveled far and wide to spread this message, and to make sure no one forgets that women are still falling 22 cents short of equality (http://www.nwlc.org/fairpay/statefacts.html)

 
Fatima Goss Graves: Fatima Goss Graves is Senior Counsel for Education and Employment at the National Women’s Law Center. She focuses on gender equity in education, including the advancement of women and girls in fields that are nontraditional for their gender, affirmative action, sexual harassment and athletics. Prior to joining NWLC, she worked as an appellate and trial litigator at Mayer, Brown, Rowe, & Maw LLP. She began her career as a law clerk on the U.S. Court of Appeals for the Seventh Circuit. She is a graduate of Yale Law School and the University of California at Los Angeles.


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Government Accountability Office Report Highlights Shortcomings of OSHA’s Voluntary Protection Program

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The Government Accountability Office has recently released a report showing that the Occupational Safety and Health Administration’s Voluntary Protection Program is ineffective. OSHA’s VPP, established in 1982 and expanded to over twice the number of job sites during the Bush administration, allows businesses to avoid routine OSHA inspections by, among other things, demonstrating below average injury and illness rates, and having a good health and safety program. This allows businesses that participate to voluntarily monitor employee health and safety, without much government oversight. This “hands-off” approach by OSHA was seen by many as giving too much leeway to employers, and insufficient to protect the health and safety of the workers. United States Senator Patty Murray (D-WA) even declared it a “recipe for disaster.”

Unsurprisingly, the GAO report concluded that not all participants in the VPP were maintaining the minimum safety levels required by the program, yet there was not an adequate system set up within the VPP to ensure that only qualified participants were allowed to remain in the program. First, there was no policy that requires documentation of OSHA’s follow-up actions in response to jobsite injuries or fatalities and second, there are no internal controls within the VPP that monitor jobsite injuries and fatalities to ensure that they stay below a minimum required for the program.

According to OSHA’s VPP manual, regional offices are required to review the safety and health systems of a jobsite following a serious injury or fatality. These reviews are supposed to help to protect the workers by determining if changes are needed to prevent that type of accident from happening again, or by removing the jobsite from the VPP. The problem is there is no requirement that these reviews be documented within the VPP files. Documentation would allow OSHA to maintain a check on the regional offices and ensure that appropriate actions were being taken; however, in their study, the GAO found no documentation of actions taken by VPP staff in regard to a number of jobsite fatalities. GAO’s further inquiry determined that while a small number of these sites voluntarily removed themselves from the VPP, a much larger number remained VPP participants, including a site which had three fatalities in five years and a site which received ten violations relating to a fatality, including seven serious violations. A small number of these sites never even received a complete investigation after an onsite fatality. These discoveries left the GAO to conclude that several sites, including sites that were part of the VPP’s Star program (the highest level of safety standards and least frequency of OSHA reviews), did not “successfully protect employees from fatality, injury, and illness” and yet remained in the program.

The GAO has suggested that if OSHA is going to continue with this “hands-off” approach they should, at the very minimum, establish better internal controls, which will help regional offices to ensure that only job sites that truly have exceptional health and safety procedures and records to remain participants of the VPP. The GAO found that the vast majority of jobsite reviews performed by regional OSHA offices were performed without access to past medical records of workers at that site, which is information that should have been obtained from the national office before the review. This information is required for the jobsite reviews to provide the national office with accurate jobsite injury and illness rates. The GAO also found that the OSHA’s national office took no effort to review the actions of the regional offices to ensure that only jobsites that met the minimum health and safety levels remained as participants in the VPP. As a result, the GAO found that 12 percent of jobsites had injury and illness rates that were higher than the national average for their respective industries, including a jobsite that had an injury and illness rate that was 4 times higher than the industry average. It does not take much to realize that a jobsite with an injury and illness rate 4 times higher than the industry average should not be able to forgo routine inspections by OSHA, and having jobsites such as these seems to defeat the whole purpose of the VPP. Needless to say, this “hands-off” approach has some serious shortcomings, and maybe trusting companies to maintain safe work environments is not such a good idea if the program does not have a procedure for dealing with jobsites that do not actually keep workers safe.

The final major flaw that the GAO discovered when compiling their report was that OSHA has set no performance goals for the VPP nor found ways to measure its actual effectiveness. OSHA has acknowledged they do need to set up performance goals in accordance with the Government Performance and Results Act of 1993, but have claimed as evidence of the program’s effectiveness that VPP participants’ safety rate are consistently lower than the national averages. However, the GAO investigation discovered that there were discrepancies between the injury and illness rates shown in OSHA’s annual reports and the actual rates shown by the jobsites. Additionally, the GAO investigation found some workers who claimed that “the injury and illness rates requirements of the VPP are used as a tool by management to pressure workers not to report injuries and illness.” This means that OSHA’s claims about the effectiveness are not backed by any real data, and further goes to show the serious shortcomings of the VPP.

While OSHA has stated that they have accepted the GAO’s recommendations, maybe the solution is to not try and patch together this broken and faulty program. Maybe it is just not possible to trust the health and safety of America’s workforce with the employers who are encouraged to cut corners on safety procedures to save money. It seems a “hands-off” approach to worker health and safety simply may not be a viable option.

David Combiths: David Combiths is a Legal Intern with Workplace Fairness, where he writes and edits legal content relating to employee health, safety, injury and illness issues. He is currently a second year student at the George Washington University Law School in Washington, DC.


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