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After the Crisis, Rise of Worker Discrimination Is Breathtaking

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It’s bad enough that the global financial crisis has put millions of people out of work and trashed the future of the ranks of workers everywhere. But, let’s take a moment to consider an undercurrent of the economic crisis, fanned by fear, stupidity and the relentless drive to cut government (oh, that comes under stupidity so please excuse the redundancy): the rise in all forms of discrimination.

I just read a very sobering just-released report from the International Labour Organization, “Equality at work: The Continuing Challenge.” Yeah, it may not be as compelling as some declaration by Donald Trump or Michelle Bachmann (since they say something new every time) but it’s worth reading…The report points out that a lot of progress is being made around the world combating discrimination of all forms.

A migrant farm worker from Mexico holds his time card to be scanned while working at Grant Family Farms on September 3, 2010, in Wellington, Colo.   (Photo John Moore/Getty Images)
A migrant farm worker from Mexico holds his time card to be scanned while working at Grant Family Farms on September 3, 2010, in Wellington, Colo. (Photo John Moore/Getty Images)

But, the economic crisis has set this effort back. Let’s start with migrant workers:

Migrant workers have been particularly affected by the crisis, with more situations of discrimination in access to employment and migration opportunities, increased xenophobia and violence, and worsened conditions of work, among other factors. These have added to the existing situations of inequality and discrimination against migrant workers.

There was a time when bad times in one country meant that migrant workers returned home. But, they can’t now–because the crisis has swept the globe and there isn’t a lot to go home to.

Which is why it is a national disgrace that fair and serious immigration reform has gone nowhere. What we’ve done is left millions of people here without protections, vulnerable to employers who are ready to exploit workers–and vulnerable to racist politicians who want to exploit people for political gain.

Women are bearing the brunt of the crisis:

A United Nations report indicates that the current crisis is following a similar pattern, partly as a result of attitudes that give preference to male employment by promoting the image of the male breadwinner. When jobs are scarce, women encounter tougher competition in access to jobs, increasing the influence of existing and persistent barriers to their employment.

This took my breathe away. I challenge you not to want to weep:

Recent data show that 829 million people living in poverty in the world are women, compared to 522 million men.With women’s wages equal to only 70 to 90 per cent of men’s for work of equal value, non-discrimination in remuneration should be a core component of measures aimed at both gender equality and reducing poverty.[emphasis added]

Repeat this: 1.3 billion people living in poverty. While the Fortune 500 registered huge profits and the U.S. has 413 billionaires worth $1.5 trillion.

And it isn’t just the lack of money in your pocket:

Living in poverty is not only about low incomes. It also means a vicious cycle of diminished health, reduced working capacity, bad working and living conditions, low productivity and reduced life expectancy. Combined with illiteracy, hunger, child labour and early parenthood, the pervasive effect of poverty can be transferred from parents to their children.

As for the foolish obsession over the deficit and debt “crisis”, let’s be blunt: those people who are advocating deep cuts in government spending are racist, sexist and discriminatory. Why:

In the aftermath of the financial crisis, global attention has increasingly been paid to reducing large budget deficits and public debts in many countries. Yet many have urged caution in formulating fiscal consolidation policies – defined by tax increases and cuts in government spending – since the measures involved could jeopardize recovery efforts, propel countries into deeper recession and exacerbate inequalities in the workforce. A joint ILO–IMF paper in 2010 warned that a premature consolidation push could damage macroeconomic growth and subsequently lead to even larger deficits and debts….

Certain groups may be particularly susceptible to the bulk of the effects of fiscal consolidation measures, as austerity policies in many countries could take the form of cuts in the welfare programmes that assist lower-income workers in access to employmentas well as direct job cuts. [emphasis added]

Look, I don’t expect Paul Ryan et al. to understand discrimination. But, it would be nice if Democrats did–and stopped promoting the phony debt and deficit “crisis” mantra.

The report digs into a whole raft of discrimination–against people with HIV, older people–and it’s a chilling story.

The bottom line: what the financial and political elites did was not just crash an entire global economic system. They made the world a meaner, nastier, uglier place to live in. My new bumper sticker: Raj Needs Cellmates.

This post originally appeared at Working Life, Jonathan Tasini’s blog.

About the Author: 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.

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S.F. Activists Launch Anti-Wage Theft Campaign

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Image: Mike HallSan Francisco workers yesterday kicked off a new citywide campaign to combat wage theft and rallied to mobilize support for a proposed new anti-wage theft law.

Wage theft is a $30 billion a year problem nationally and in the Bay Area, workers in the restaurant, construction, caregiving, manufacturing industries are victims. Tiffany Crain, from the activist group Young Workers United (YWU), says:

It comes in the form of not being paid overtime, not receiving breaks, not being paid at all in some instances, and many other things that are unlawful, work off the clock, they’re told to clock out and told to do other duties and not paid for it.

In 2010, a report released by the Chinese Progressive Association revealed that 1 out of 2 workers in Chinatown restaurants are paid below the minimum wage.  In 2010, the Progressive Workers Alliance helped Bay Area workers recover nearly $500,000 in stolen wages due to wage theft through legal claims, lawsuits, employer negotiations and community campaigns.

The proposed ordinance by city supervisors David Campos and Eric Mar would strengthen requirements that employers post notices and inform workers about the minimum wage and other workers’ rights related to wages and also increase penalties for employers who violate the law.

Crain says the proposed ordinance would benefit employers as well as workers because wage theft “is unfair competition for responsible businesses, and we will work to help promote these good businesses.”

Last week, the group issued their second annual edition of “Dining With Justice,” which highlights food establishments that follow labor laws and treat their employees with dignity and respect.

This blog originally appeared in AFL-CIO on May 13, 2011. Reprinted with Permission.

About the Author: 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. When his collar was still blue, 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 has also worked as roadie for a small-time country-rock band, sold his blood plasma and played an occasional game of poker to help pay the rent.

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Domestic Workers Form Historic Partnership With AFL-CIO

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kari-lydersenNationwide, millions of domestic workers—largely immigrant women—labor long hours cleaning, cooking, taking care of other people’s children and otherwise performing necessary tasks for wealthier people whose own jobs or lifestyles don’t leave them time or energy for this work.

The work is frequently off-the-books and rarely covered by binding labor agreements or even individual contracts. They are not included under the National Labor Relations Act. There are ample horror stories of domestic workers being abused or even held captive by their employers.

On Tuesday, May 10, the AFL-CIO formally recognized domestic workers as members of organized labor, as an agreement was made between the AFL-CIO and the National Domestic Workers Alliance, which includes 33 groups representing about 2.5 million domestic workers in 11 states and 17 major cities.

The NDWA has long been pushing for the strengthening of labor rights nationally for domestic workers and domestic workers bills of rights in individual states, including California. They claimed an historic victory last summer when New York passed a law granting domestic workers formal labor rights. The alliance is also calling for a convention on domestic workers’ rights under the International Labor Organization, which is part of the United Nations.

The agreement between the AFL-CIO and the NDWA says:

Through explicit and implicit exclusion of domestic workers from most labor and employment laws, domestic workers’ contributions to our nation’s and individual families’ household economies have gone hidden, devalued, and little understood.

This history of exclusion can be traced to the specifics of the industry and race politics. Primarily working in isolation in private homes, domestic workers who were predominantly African-American women were subjected to discrimination, unsafe working conditions, stolen wages, intimidation, and a long list of other abuses.

Although the demographics of domestic workers have changed to a mostly immigrant women workforce, the working conditions in the industry have changed very little.

Some of the rights sought by the NDWA are things so seemingly basic that they are not even an issue for almost every other profession—for example, the right to five hours of uninterrupted sleep per night and the right to cook their own food. The Alliance’s website says:

Domestic workers often labor around the clock, placing themselves and the people they care for at risk of sickness and unintentional mistakes caused by exhaustion.

The alliance also seeks—and in New York has obtained—the same things that workers are either guaranteed or seeking in other fields: paid sick days and paid vacation days, overtime, workers compensation.

The partnership could help further these goals on multiple levels, emphasizing that domestic workers are indeed “workers” entitled to the same rights as people in other jobs; and the aforementioned rights are things that all people should have access to. (People in other professions—including restaurant work, farm work and construction—are, of course, also typically denied paid sick days, vacation days and overtime.)

The partnership’s goals, as spelled out in the agreement, are:

—Local City and county level campaigns to enact ordinances or laws to expand protections and promote the rights of domestic workers;
—Statewide campaigns to establish labor standards for domestic workers;
—Campaigns to create administrative and regulatory changes at state and federal Departments of Labor;
National campaigns to establish labor standards, expand collective bargaining rights, create dignified jobs and support quality care for all, such as the Caring Across Generations campaign;
—International collaboration to bring visibility and dignity to the global domestic workforce, including the Decent Work for Domestic Workers Convention at the International Labor Organization.

The AFL-CIO and the domestic workers groups plan to accomplish these goals and generally increase the diversity and strength of the labor movement by fostering cooperation between state federations and local labor councils and domestic workers’ groups, in furtherance of both specific campaigns and general labor rights. This is part of a larger move to widen the scope of “organized labor” to include workers not traditionally represented by unions.

The agreement says:

Until these communities know each other, work with each other, and have an institutional connection to each other, it will be much more difficult to plan and strategize together, and to build a level of trust necessary to work effectively together in pursuit of our common goals and objectives.

The agreement also describes how domestic workers groups can affiliate with a local union, in keeping with the AFL-CIO’s National Worker Center program launched in 2006. The agreement also stipulates that the AFL-CIO and members of NDWA won’t compete with each other in situations where unions or domestic worker groups are organizing, and won’t undermine each other’s efforts.

While the agreement could have great concrete and symbolic effects for millions of domestic workers, it is limited to workers who are connected with domestic workers organizations. That means scores of domestic workers won’t be part of the partnership, likely including the most vulnerable workers in rural areas and/or in situations where they are highly isolated or exploited by their employers.

Hence continued outreach and organizing among domestic workers, continued strengthening and enforcement of labor laws, and even basic human rights protections—plus comprehensive immigration reform, as Michelle Chen noted yesterday—will be key to making sure domestic workers nationwide are truly empowered and protected.

This article originally appeared on the Working In These Times blog on May 12, 2011. Reprinted with permission.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at [email protected]

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German Workers Rally For T-Mobile USA Employees’ Rights

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Image: James ParksMore than 500 workers from ver.di, the German telecommunications workers union, today descended on Deutsche Telekom’s global annual shareholders’ meeting in Cologne  to demand  the company ensure its American employees at T-Mobile USA the same rights enjoyed by its German workforce.

The workers formed a human chain around the meeting venue and released black balloons as a sign of mourning for their U.S. co-workers’ rights.

In Germany, Deutsche Telecom recognizes the union and has a collective bargaining agreement with workers. But at its American subsidiary, T-Mobile USA, management harasses workers who try to join the union, and has implemented a company-wide strategy of refusing to recognize the workers’ choice of a union and collective bargaining rights.

Communications Workers America (CWA) President Larry Cohen, said:

T-Mobile workers must be allowed to choose a union, and the harassment must stop. We thank German workers for standing up for our rights.

“Deutsche Telekom should change its behaviour in the United States as soon as possible. Its global standing is at stake and it should use this chance to improve its reputation,” said ver.di’s Ado Wilhelm.

Philip Jennings, general secretary of UNI Global Union, which brings together unions in the telecoms sector, said “responsible employers don’t act this way.”

We expect better from one of the world’s leading telecom companies with solid industrial relations in its home country.

On March 20, Deutsche Telekom agreed to sell T-Mobile USA to AT&T, which respects workers’ rights to union representation and collective bargaining. The government review of the merger could take a year.

Sharan Burrow, general secretary of the International Trade Union Confederation (ITUC), said T-Mobile workers should not have to wait a year to gain their rights.

This article originally appeared in AFL-CIO blog on May 12, 2011. Reprinted with permission.

About the Author: James Parks’ first encounter with unions was at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He also has been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

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From Sudbury to Chicago, Complaints About ‘Blame the Worker’ Safety

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kari-lydersenTORONTO—After a bitter strike by nickel miners in Sudbury, Ontario, the Brazilian mining company Vale last year instituted a brand new safety policy, according to miners speaking at a conference in Toronto on Saturday.

It was based on a premise that has become increasingly popular among multi-national companies and smaller employers in North America and globally in recent decades: behavior-based safety programs, which analyze workers’ exact movements, behaviors and attitudes to find out what factors, in the company’s view, are causing accidents and injuries.

Union leaders and other critics have dubbed the programs “blame the worker,” on the premise that rather than addressing unsafe workplace conditions or inherently hazardous and grueling aspects of many jobs, employers say that accidents and injuries are almost entirely the result of worker behaviors and mindsets.

“A guy broke his leg on a broken stair, and instead of fixing the stair they disciplined him for not seeing the broken stair,” said Jamie West, a Sudbury miner and member of the United Steelworkers, at the Mining Injustice conference covering mining-related labor, environmental and human rights issues in Canada and globally.

Companies and consultants that advocate such programs say it is a way to involve workers in promoting safety and reducing injuries and accidents. Critics say it is a way for companies to shirk responsibility, discipline workers for safety lapses and discourage workers from reporting injuries.

The Steelworkers have published papers about “blame the worker” programs and taken a leading role in opposing the practice.

On Workers Memorial Day—the 40th anniversary of the Occupational Safety and Health Administration (OSHA)—on April 28, Teamsters Local 705 in Chicago launched a campaign to, in union lawyer Anthony Prince’s words, “eliminate the blame the worker” approach at UPS hubs in the Chicago area.

Behavior-based safety programs are considered to have originated with insurance investigator H.W. Heinrich in the 1930s. Labor experts and union leaders say these programs have in recent decades become part of a larger cultural and economic trend in the labor market, wherein workers’ protections are eroded under the guise of giving them more autonomy or individual responsibility.

Robert Bruno is an employment relations professor at the University of Illinois at Chicago and author of the 2003 book “Reforming the Chicago Teamsters: The Story of Local 705.”

He sees behavior-based safety programs as part of the general shift to a neoliberal economy.

These things have been around for a long time, but now this behavior-based model or approach to understanding what made a job safe or unsafe is really part of the package of anti-regulatory free market measures that have been on the march since the Reagan years…and the deregulation of the workplace or of the marketplace.

It’s part of a much larger political movement to take responsibility and obligation off the employer and shift it to the individual. Instead of having defined benefit plans, you shift the retirement benefit to the worker. You try to undo social security and turn it into a voucher system, where workers invest their own income. It’s the idea that you’re an individual and if you’ve got  talent or skill you don’t need a union.

A 2000 story in the Multinational Monitor says:

The theory underlying these programs is that workers who work carefully do not get injured (and therefore deserve rewards), and those who work carelessly and become injured deserve punishment … Critics say the real goal of these programs is to discourage worker reports of injury and illness. Discouraging injury reporting can be hazardous. Workers may not get the care and early treatment they need, and job hazards may not be identified and corrected.

Teamsters Local 705 union leaders and workers say the highly physical nature of UPS work is bound to cause injuries, and the most meaningful way to reduce the risk is by reducing the amount of work employees are expected to do each shift. UPS officials note that their reported injury rates are below the national average for the courier and messenger injury. Prince said:

‘Blame the worker’ allows UPS to avoid genuine identification and elimination of hazards and injuries caused by management’s speedup and overwork of our members.

Behavior-based safety programs often celebrate and offer incentives—from gift drawings to free meals to clothing to cash—for number of days without OSHA reportable injuries. Critics say this brings peer pressure into the equation, with workers afraid of spoiling the group rewards and recognition for their colleagues. At the Toronto mining conference, Federico Veronesi, a Brazilian organizer involved with a contentious Vale mine, described this approach being used.

Miners work in teams of 10-12, and every team at end of month receives food for their family—rice and beans. But if one person gets injured in that month, no one gets the benefit.

Prince and other Teamsters Local 705 workers and members said that this tactic pits workers against each other and is also demeaning. Prince said:

It’s like we would have had a pizza party, but Tommy didn’t put his crayons away.

This article originally appeared in the Working In These Times blog on May 9, 2011. Reprinted with permission.

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Blog #9. Fired in Real Time: Getting Advice

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Image: Bob RosnerI remember the feeling of being on a short leash when I was growing up. Whenever I forgot about it, my parents would yank it just to remind me.

Unemployment is like that too. I got an email for a mandatory meeting with four days notice. There was no option for rescheduling it, and the letter said that if I didn’t show I would lose my benefits.

I’m not complaining, I understand leashes.

I showed up at the appointed time to be greeted by fifty other people who’d been tossed under the bus. There was remarkably little conversation.

If I expected any sense of a community forming among the others in the room, it quickly dissipated. There were not tables available to fill out the form that I needed to get access into the room. So I leaned on the top of a computer.

I was half way through my form when the woman using the computer I was leaning on told me that she needed to use the top of the computer to store her papers. It was interesting, because she was sitting at a huge empty desk. But clearly the only space that she really needed where I was writing.

No, this was every man, and woman, for themselves.

Finally they announced that the meeting would begin. We were herded into a room for an explanation of how to fill out the various forms. It was like dealing with the post office, but much slower moving.

The woman said that we needed to fill out the goldenrod form in pen. When one guy said that the lobby was full of pencils and he’d filled out the form with that, the woman let out an audible shrug and snatched the form out of his hand.

There were rules, but we also learned that there would be exceptions too. A valuable lesson for surviving my newfound bureaucratic existence.

After an hour, I got my shot for a one on one session. I clutched my resume and followed her to her cubicle.

She took one look at my resume and said that I wouldn’t get far with it. That I would be considered overqualified. I did get the sense that she actually cared about me. She just didn’t make that much eye contact, I guess that when you work with unemployed people, like in a hospice, you want to keep a bit of distance.

Overqualified, just echoed in my head as I walked toward my car.

My a-ha: My parents taught me well about surviving short leashes

Next installment: Keeping the Faith

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 Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

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Chipotle Workers Under New Scrutiny by the Feds

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Denver-based Chipotle Mexican Grill is once again facing close scrutiny from the Immigration and Customs Enforcement (ICE). We told you about Chipotle earlier this year when the company fired 450 workers in Minnesota—more than one third of its workforce—after a probe by immigration authorities.

This week, federal agents questioned employees at more than two dozen Chipotle restaurants in Los Angeles, Atlanta, Minnesota, and Washington, D.C., as part of a probe into the chain’s hiring practices in several states. Chipotle employs about 26,500 workers.

Robert Luskin, Chipotle’s outside counsel and a partner at Patton Boggs in Washington, told Reuters: “We’ve got nothing to hide. We’re absolutely convinced that nobody did anything wrong.”

ICE spokeswoman Cori Bassett told the Denver Post that as a matter of policy, ICE doesn’t comment on ongoing investigations.

The Wall Street Journal reports the Chipotle has been one of the most prominent high-profile employers to be investigated under President Obama’s immigration policy of cracking down on employers.

The intensified scrutiny of employers is having a severe economic impact on undocumented workers, not to mention the businesses. Immigrants, whether undocumented or not, make-up about a quarter of workers in the restaurant and food services industry. A 2009 report by the Pew Hispanic Center estimated that about 12 percent of the workforce in food preparation and food serving in 2008 was undocumented.

In February, Chipotle began using E-Verify at all its 1,100 restaurants. E-Verify is an electronic database that verifies the eligibility of workers to work in the U.S.

UC Berkeley hunger strikers enter Day 10

And now for something slightly different. Six students continue a hunger strike at UC Berkeley where they are protesting the consolidation of Ethnic Studies with African American studies, and Gender and Women studies departments.

The result is staff reductions and the demotion of full-time faculty to half time. Last semester Ethnic Studies lost two positions and now will eliminate 2.5 full-time equivalent staff positions.

A dozen students began their strike on April 26. The consolidation of the departments takes place under the “Operational Excellence,” an effort by UC Berkeley to cut costs and streamline bureaucracy. The consolidation of the three departments would save $500,000 in staff costs.

This is not just for us,” Veronica Rivas, one of the hunger strikers, said on KPFA’s Morning Mix. “Today it’s ethnic studies, African-American studies and women gender studies. Tomorrow it’s toxicology or its economics.”

On April 26, the students and their supporters sent a letter to university officials to outline four demands: re-instate staff positions eliminated under Operation Excellence, end the current process of Operation Excellence, publicly support ACR 34—an Assembly resolution that would formally recognize the work of Ethnic Studies departments statewide—and publicly acknowledge the unfulfilled promise to create a Third World College at the university.

Administrators responded in a letter, “Our hope is to understand one another better, given that we have the same ultimate goals for equity and inclusion. This hope also applies to questions about the particular structure of ethnic and related studies and their place in the academic organization.”

*This article originally appeared in Working in These Times on May 6, 2011.

About the Author: R.M. Arrieta was born and raised in Los Angeles. She has worked at three daily newspapers and two television stations and is a former editor of the Bay Area’s independent community bilingual biweekly El Tecolote. She currently lives in San Francisco, where she is a freelance journalist writing for a variety of outlets. She can be reached at [email protected]

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After Half-Decade Struggle, Rite Aid Workers Form Union at Giant Distribution Center

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randwilsonRite Aid workers at the company’s massive Southwest Distribution Center in Lancaster, Calif., declared victory on May 1 in their five-year effort to form a union and improve working conditions.

Workers signed a three-year tentative contract with management—subject to a May 12 membership ratification vote—that will improve conditions at the million-square-foot facility in California’s high desert by guaranteeing:

  • Health insurance rates that are fair for both individual workers and their families
  • Job security provisions to prevent work from being sub-contracted
  • A worker voice in production standards and ability to challenge unfair standards
  • Protection against intense summer heat and winter cold, using innovative indoor-temperature standards
  • A fair and impartial process for resolving disputes
  • Wage increases in each of the next 3 years.

“We’re excited about winning this victory, even if it took longer than it should have,” said Carlos “Chico” Rubio, a 10-year warehouse worker who helped negotiate the union contract with a team of eight co-workers.

Employees decided to form their union in March of 2006 after contacting the International Longshore and Warehouse Workers Union (ILWU). Within months, Local 26 President Luisa Gratz was helping workers address problems with indoor heat and production standards.

Unfortunately, Rite Aid began aggressively interfering with the workers’ freedom to organize:

  • Management retained an expensive team of notorious union-busting consultants.
  • The company threatened and fired workers for supporting the union
  • Illegal layoffs were imposed without consulting workers and their new union.
  • The company engaged in “surface bargaining” that delayed meaningful negotiations for a year.

Responding to these challenges, Rite Aid workers stayed united and helped their union lead a sophisticated campaign that included:

“Rite Aid made this process much more difficult on workers and families than it needed to,” said ILWU International Vice President Ray Familathe, who helped workers reach their May 1 settlement.

This post originally appeared in In These Times on May 4, 2011.

About the Author: Rand Wilson is communications coordinator at the AFL-CIO Organizing Dept.’s Center for Strategic Research. He has worked as a union organizer and labor communicator in the United States since the 1980s. For more information about Wilson, visit

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Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

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ellen simonHere are a few employee rights Short Takes worth noting:

It’s A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 (“ADAAA”). The law made significant changes with respect to the interpretation of  the term “disability” under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: www.glbtq.comf

This blog originally appeared in Employee Rights Post on May 2, 2011. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to

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Walker Scales Hypocrisy Summit with Worker ‘Recognition’ Awards

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Image: Mike HallSome might call it gall, others might say chutzpah.  I’m leaning toward calling it two-faced with several words preceding it that got me into a lot of trouble with my mother when I was a kid.

But whatever you decide to call Wisconsin Gov. Scott Walker’s announcement that he has launched a series of state employee recognition awards rewards just weeks after his long and bitter fight to eliminate their collective bargaining rights, it’s hypocrisy at its worst. (Speaking of hypocrisy, check this out from Ohio Republican Gov. John Kasich.)

Walker’s action comes just days after he appointed the partner in a union-busting Milwaukee law firm as the new commissioner and chairman of the Wisconsin Employment Relations Commission (WERC). That’s the state body that decides disputes between state workers and management and now with Wisconsin workers’ rights eroded is even more important.

First the “coveted” awards and then a word about the new labor commish.

Walker says that his new State Employee Recognition awards program is his way of saying “thanks” for the hard work and dedication of state workers and to “highlight the most outstanding employees with recognition. ” Walker’s sincerity just oozes out of that quote. Brings the word “smarmy” to mind, doesn’t it?

Meanwhile, Walker’s new WERC chair, James R. Scott, comes to his post straight from the law firm Linder & Marsack S.C. which tells prospective clients:

Since our founding, we have aggressively represented our non-represented clients in pursuit of their goal to maintain a non-union status in furtherance of these goals.

Read more from Judd Lounsbury at the Uppity Wisconsin blog, including cases where Scott “specifically fought against government workers.”

This blog originally appeared in AFL-CIO on April 12, 2011. Reprinted with Permission.

About the Author: 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. When his collar was still blue, 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 has also worked as roadie for a small-time country-rock band, sold his blood plasma and played an occasional game of poker to help pay the rent.

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