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Why the Best Protectors for Workers Are Other Workers

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As concertgoers fled the mass shooting at the country music festival outside the Mandalay Bay in Clark County, Nev., at the end of the Las Vegas strip, dozens of off-duty fire fighters attending the concert sprang into action. Twelve were among the wounded by gunfire.

At the same time, more than 150 fire fighters and paramedics from Clark County Local 1908 and surrounding locals rushed to the scene to save lives, treat the wounded and help the survivors.

“Our members–including those attending the concert off duty–reacted as they always do,” said IAFF General President Harold Schaitberger. “They put their training to work immediately, without hesitation and without regard for their own safety, making quick and difficult decisions on how best to save lives.”

As the news of the unfolding tragedy flashed across the nation, the International Association of Fire Fighters (IAFF) – the union representing more than 310,000 professional fire fighters and paramedics–also took action, reaching out to Clark County Local 1908 and other affiliates in the area to provide assistance.

On Monday morning after the shooting, Patrick Morrison–a retired Virginia fire fighter who heads the health and safety division at the IAFF, was on the phone with affiliates across the country to organize and mobilize experienced teams of peer support counselors and trauma specialists to help members involved in the response to the mass shooting. Within hours, he too was on a plane to Las Vegas.

“It’s easy to see a broken arm and treat it. It’s more difficult to see trauma to our brains or hearts,” Morrison said. “Everyday, work for fire fighters and paramedics can be traumatic. Mass-casualty events can be much worse. We want to make sure our members understand the signs and symptoms of traumatic stress injuries, so we can treat them.”

Many of the peer support counselors who arrived in Las Vegas have been through similar events. Some pulled bodies from the attack at the 2016 Pulse Nightclub in Orlando, Fla., where 49 people were killed and 59 wounded. Others got a crash course in trauma from the terrorist attacks on September 11, 2001, or from the Sandy Hook Elementary School shooting in 2012.

All of them brought their personal stories to Las Vegas to help their union brothers and sisters.

At the school shooting at Columbine High School in Littleton, Col., Ray Rahne was a fire fighter who had responded like everyone else in his department. Afterwards, the Vietnam veteran, who is also a husband and father, would find himself crying at times. And he was skittish and jumpy.

“I would go from happy to depressed at the snap of the fingers. People started asking, ‘What’s going on?’ This went on for over a year. Finally, I thought, I don’t know. I’ve got to go see somebody,” Rahne said.

Now retired from Littleton Fire and Rescue and a IAFF district vice president, Rahne got help and then joined his union’s growing movement to treat mental and emotional injuries to fire fighters, paramedics, and dispatchers.

Two years ago, the IAFF hired its first full-time and permanent behavior health specialist. This year, the union plans to hire a second. And, last March, the union opened the Center of Excellence for Behavioral Health Treatment and Recovery in Upper Marlboro, Md., exclusively for IAFF members.

“Health and safety is a big priority for us. We want to make sure all of our members are as safe as possible,” Morrison said.


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SCOTUS Is on the Verge of Decimating Public-Sector Unions—But Workers Can Still Fight Back

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On Thursday, the Supreme Court agreed to hear Janus vs. AFSCME, the case that will likely turn the entire public sector labor movement into a “right-to-work” zone. Like a lazy Hollywood remake, the case has all the big money behind it that last year’s Friedrichs v. CTA did, with none of the creativity.

In Friedrichs, the plaintiffs argued that interactions between public sector unions and government employers are inherently political. Therefore, the argument went, mandatory agency fees to reimburse the union for the expenses of representation and bargaining were forced political speech, violating employees’ purported First Amendment right to not pay dues.

The case ended in a 4-4 deadlock in March 2016, following the death of Justice Antonin Scalia, who had appeared poised to vote against the unions’ interests.

Much like Friedrichs, the Janus case has rocketed through the federal courts. The National Right to Work Foundation, which represents the plaintiffs, petitioned the Supreme Court to hear the case in early June. All briefs will likely be submitted by mid-January 2018, meaning SCOTUS could hold hearings almost exactly a year to the date that the Court last heard the same arguments.

The defendants may argue for procedural delays, which could potentially kick the decision into the following court term in 2018-2019. And it’s possible that in the meantime Justice Anthony Kennedy could die of a heart attack, or Sam Alito could forget to look both ways while crossing First St. and get run over by a bus. And the Democrats might take back the Senate next year, preventing the Trump administration from naming any more conservatives to the Court.

That’s the kind of magical thinking we’re left with, because the conservative majority on the Supreme Court is clearly determined to tilt the power of the country in favor of big business and against unions for at least a generation, and they care little about how just or fair their decisions appear to the public.

“Right to work” laws, currently on the books in 27 states, strip the requirement that union members pay union dues. Unions claim this creates a “free rider” problem, allowing workers to enjoy the benefits of union membership without contributing a dime. This deprives unions of crucial funding, but also—and this is no small consideration for the right-wing—every union family that drops their membership becomes one less door that union members can knock come election season.

Most national unions have been preparing for this eventuality since the first time the Roberts court took up the issue of public sector union fees in 2014’s Harris Vs. Quinncase. (If you’re keeping score, yes, the conservative justices on the Supreme Court have spent three years in a row trying to break the backs of unions).

Much of this preparation has focused on making sure that unions have a shop steward in every department and that every new hire is asked by a living breathing human being to actually join the union. But, as I wrote earlier this month, the bigger threat once workers have the right to evade union fees is the direct mail and phone-banking campaign that is already being run by Koch Brother-funded “think tanks” to encourage workers to drop their union membership and “give yourself a raise.”

As I wrote then, “The slick ‘give yourself a raise’ pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. … But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.”

There is a certain irony in conservatives applying the First Amendment to collective bargaining, a principle that conservative jurists have studiously avoided for two centuries. If every interaction that a union has with the government is a matter of speech, then we have a stronger argument for instituting a Bill of Rights for labor to protect workers and their right to demand fair treatment on the job.

Unions are already oppressively regulated. They are told by the National Labor Relations Board whom they can picket, when they may march and what they might say on a flyer. And they face steep fines if they disobey. Workers are forced to attend endless hours of anti-union presentations before a union election with no right to respond or boycott.

If every interaction the government has with a union is a matter of political speech—as a ruling in favor of Janus would imply—unions must respond by forcefully arguing that the rules of the system have been unfairly holding workers back, violating of our rights to free speech, due process and equal protection.

This blog was originally published at In These Times on October 18, 2017. Reprinted with permission.

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.


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Stop asking women to change to make men feel comfortable in the workplace

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Numerous women have said that film producer Harvey Weinstein sexually harassed or raped them. But rather than blaming the man responsible for the sexual assault, conservative commentators, former White House officials, and journalists alike are turning their focus on eliminating interaction between men and women.

Last week, the New York Times published an investigation on the experiences of actresses who were alone with Weinstein and the allegations of sexual harassment and sexual assault against Weinstein, which occurred over the span of three decades. On Tuesday, The New Yorker published an article detailing the experiences of multiple women in excruciating detail. It also exposed the ways in which the industry protected Weinstein and how his employees helped him meet women, despite their discomfort in doing so.

Weinstein has been fired from the company he co-founded, and A-list celebrities, such as Meryl Streep, Viola Davis, Judy Dench, George Clooney, and Jennifer Lawrence, have spoken out against him and his treatment of women he worked with. On Tuesday, Weinstein’s wife of a decade, Georgina Chapman, said she’s leaving him. On the surface level, it seems that Weinstein’s career is over and that his accusers have found justice. But the response to the Weinstein sexual harassment reports proves that instead of putting blame where it belongs — on sexual predators — some men are still interested in blaming women and their presence in the office for their own abuse.

Former deputy assistant to President Donald Trump, Sebastian Gorka, tweeted that all of these sexual assaults could have been avoided if Weinstein simply didn’t meet with women one-on-one. He referred to Vice President Mike Pence’s rule of not eating alone with any woman other than his wife, Karen, and suggested if Weinstein simply hadn’t met with women alone, he wouldn’t have assaulted them.

Gorka’s tweet laid bare the real argument that is being made when men say they can’t be alone with women. It perpetuates the cultural pretense that when men are sexually violent, it is simply an impulsive mistake, a part of their nature that they can’t control, instead of a decision they made to prey on particular women they know they can control or whose reports won’t later be believed. The New Yorker’s investigation into Weinstein’s alleged sexual assaults clearly shows that his decisions were calculated and followed a pattern. For example, Weinstein reportedly used female executives to give the women he harassed a false sense of security before he met with them alone. The New Yorker piece read:

Some employees said that they were enlisted in subterfuge to make the victims feel safe. A female executive with the company described how Weinstein assistants and others served as a ‘honeypot’—they would initially join a meeting, but then Weinstein would dismiss them, leaving him alone with the woman.

Other men noted that women shouldn’t have met with Weinstein in hotel rooms, as if Weinstein didn’t also sexually assault women in his own place of business.

Weinstein used every tool available to him to manipulate women into meeting with him, including his colleagues and the impunity he enjoyed at his workplace. One of Weinstein’s producers told a woman that she was meeting several people for a Miramax party at a hotel, but when the woman arrived and the producer led her to the room, Weinstein was the only person there, according to the New Yorker. Weinstein also reportedly sexually assaulted a woman during daylight hours inside his Miramax office. He expected that some of the women he harassed and assaulted would speak out, and he made the consequences clear to them. The reporting on Weinstein shows that he is a man who knew how to intimidate and control women to force himself on them and keep them silent. There is nothing accidental about it. He was inventive, cunning, and powerful enough that a formal workplace culture never would have stopped him from sexually assaulting women.

Still, none of these details have stopped people from suggesting that a different kind of workplace would have solved the Harvey Weinstein problem and magically stop men from sexually harassing women. Josh Barro, a senior editor at Business Insider, wrote that the real problem is fun office cultures. Barro wrote for Business Insider:

But there are industries with cultures that involve after-hours social activities that blur the lines between business and leisure and can easily appear inappropriate for colleagues who could be suspected of sexual involvement.

Barro doesn’t think that getting rid of after-hours socializing will hurt women. He thinks it will break up all-male networks. To that, I laugh heartily. Men may not go to official after-hours events that their boss encourages them to attend, but such a ban certainly doesn’t prevent men from meeting with each other after work (and why should it?). The only result is that there isn’t an official employer-endorsed space for both men and women to gather. If women already feel shamed for meeting with men alone, it certainly won’t help for employers to make mixed-gender socializing seem strange, or even harmful.

In response to the Times piece detailing men’s concerns about accusations of sexual harassment or the “appearance of impropriety,” Barro wrote that instead of dismissing these men’s fears, the whole office culture must adapt to them and their concerns. He said it requires more than “just the hand wave of ‘don’t harass women, it’s simple.’”

But it is that simple. The office culture that needs to be destroyed is not one that has happy hours. It’s one that has no real system of accountability for powerful men who could easily crush the careers of their subordinates. The reports about Weinstein follow a series of high-profile sexual harassment cases across a range of industries over the last year, including Fox News personalitiesactorsmusicians, and Silicon Valley investors and executives.

Still, Barro isn’t alone. The flurry of reports of sexual harassment have caused some men to decide to avoid one-on-one interactions with women altogether. As one orthopedic surgeon told the New York Times, “I’m very cautious about it because my livelihood is on the line. If someone in your hospital says you had inappropriate contact with this woman, you get suspended for an investigation, and your life is over. Does that ever leave you?”

The men interviewed didn’t mention the effects sexual harassment has on the career of the women who come forward, nor did they appear to understand the career risks women take to report sexual harassment. If they did, they might understand that it is not a flippant choice. By saying they’re not interested in interacting with women because they’re scared of sexual harassment allegations, these men demonstrate one of the main reasons why women don’t come forward with allegations sooner: they don’t want to be shut out of career opportunities.

Unfortunately, this view is all too common. A 2010 Center for Talent Innovation study found that almost two-thirds of male executives said they stopped having one-on-one meetings with junior female employees because they feared that people would think they were having an affair. Nearly two-thirds of people interviewed for a May poll by Morning Consult said people should take caution when meeting with people of the opposite sex at work. Fears that other people may view their meetings as improper stop the majority of senior men from meeting with women, even though women’s careers benefit from having sponsors.

Demanding that entire industries that revolve around evening cocktails and building relationships with colleagues outside of work hours stop all off-hours socialization is unrealistic, but even if it were possible, it still wouldn’t prevent sexual harassment. Weinstein himself met with women in a variety of settings, but he also found ways to cleverly shift where and when meetings would take place. The former assistants and executives mentioned in the New Yorker piece, some of whom facilitated the meetings, said there was a “culture of silence” around sexual assault.

Other sexual harassment allegations show that men don’t need social events or “fun” workplace atmospheres to harass women. Regarding a sexual harassment case at SoFi, an online personal finance company, the plaintiff said that he saw his manager put “explicit sexual innuendo and statements into normal workplace communications.” A former Fox News host, Eric Bolling, was accused of sending lewd photos to his female colleagues via text message in August. Should male colleagues no longer send professional communication to all co-workers or have their female colleagues’ phone numbers? That would be ludicrous. The best solution is for men to be as considerate to their female colleagues as they are to their male colleagues, to no longer shut them out of business meetings for the sake of “appearances,” and to work to create an environment that supports their female colleagues when they do come forward with harassment allegations.

Here’s another thought: They could also stop sexual harassing women.

This blog was originally published at ThinkProgress on October 11, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress. She covers economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.


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A Trailblazing New Law in Illinois Will Dramatically Expand Temp Workers’ Rights

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Beginning next summer, a sweeping new law will take effect in Illinois, ending many of the routine injustices suffered by the state’s nearly 850,000 temp employees who often work under miserable conditions.

The Responsible Job Creation Act, or HB690, represents the most ambitious attempt to date by any state to regulate the growing temporary staffing industry. Introduced in January, the bill gained bipartisan support in the Illinois General Assembly and was signed into law by Republican Gov. Bruce Rauner in late September. The law will take effect June 1, 2018.

The legislation, which addresses job insecurity, hiring discrimination and workplace safety, was championed by the Chicago Workers’ Collaborative (CWC) and Warehouse Workers for Justice (WWJ), as well as the Illinois AFL-CIO and Raise the Floor Alliance, a coalition of eight Chicago worker centers.

The law will require staffing agencies to make an effort to place temp workers into permanent positions as they become available—a step forward in the fight to end “perma-temping.” To address racial bias in hiring, the new law requires temporary staffing agencies record and report the race and gender of all job applicants to the Illinois Department of Labor. And in an effort to reduce the workplace injuries that temps frequently suffer, agencies will also now have to notify workers about the kinds of equipment, training and protective clothing required to perform a job.

State Rep. Carol Ammons—a Democrat from Champaign-Urbana who supported Bernie Sanders’ presidential campaign—was the bill’s chief sponsor. Activists credit her with getting the bill to the governor’s desk.

“Legislators don’t always get down into the deep part of the process, but this was so personal to me,” Ammons tells In These Times. After her son told her about the problems he had experienced as a temp worker in another state, she began looking into the temp industry in Illinois and became convinced that it needed reform.

“HB690 won support from both Democrats and Republicans, who heard the voices of workers who came to Springfield to educate us about the temp industry,” state Sen. Iris Martinez, a Democrat who joined Ammons in backing the bill, said at a press conference last Thursday. “When you have two strong women of color leading the charge on this kind of bill, things get done.”

Bakari Whitfield, a WWJ activist, says the most important aspect of HB690 for him is “the opportunity to get a built-in permanent job, as opposed to a seasonal temp job.” Whitfield has been a temp worker for over ten years in a warehouses outside of Joliet. “It’s just a revolving door,” he says. “They hire you and fire you around the same time every year. Every six months you have to go get another job,”

The transparency provisions come in response to a pattern of systemic racial and gender discrimination in the temp industry. In Illinois, whistleblowers have alleged that African-American temp workers are routinely passed over for jobs in favor of Latinos, whom employers consider easier to exploit on the job.

A previous Illinois bill that would have required temp agencies to report the demographics of job applicants, SB47, was killed in 2015 after temp industry lobbyists spread misinformation and fostered divisions between Latino and black lawmakers, as reported by the Center for Investigative Reporting.

According to Ammons, lobbyists similarly tried to sink HB690 this year. A community organizer before entering politics, Ammons says she relied on conversations and personal relationships with fellow lawmakers to counter the industry lobby and advance the bill.

Months before even introducing the bill, “I started talking to legislators about what was happening in the industry and what was happening to the workers,” Ammons explains. “We started really pushing our legislators in a way that maybe they had not experienced from another legislator, asking them to take the moral high ground on the issue. They realized we weren’t going to let it go and decided they had to work with us.”

The Responsible Job Creation Act also requires staffing agencies to bear the costs of background checks, drug tests and credit reports for job applicants—costs workers currently have to incur themselves.

CWC activist Freddy Amador, who worked as a temp for five years at a factory in Waukegan, told In These Times that he’s had to pay up to $95 in such fees for a single job application. “You pay and sometimes you’re not even going to get the job,” he says.

“Working folks should never have to be penalized with these fees just to apply for a job,” Ammons said at Thursday’s press conference. “The temp agencies are a business, so they are to bear the costs associated with doing business, not the workers.”

HB690 also requires staffing agencies to provide workers with transportation back from a job site if they were given a ride. Under the current system, temp workers are frequently left stranded with no way to get home.

Ammons has promised to track how the law is being enforced, including whether temp agencies are actually placing temps into permanent positions, but admits there’s still more work to be done. In particular, Ammons hopes to pass a trailer bill that would end the practice of staffing agencies paying temp workers through credit or debit cards, which carry fees.

“That’s double taxation on the worker. They should be able to get a paper check,” Ammons says.

“We now have to ensure there is enforcement [of HB690], not that we create a law and forget about it,” Martinez insists. She has encouraged the temp worker leaders with CWC and WWJ to hold legislators accountable. “It’s up to you to let us know that the law is being acted out responsibly, and if not, don’t be afraid of coming back to us and making sure that we do the right thing.”

This article was originally published at In These Times on October 4, 2017. Reprinted with permission.

About the Author: Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times. Follow him on Twitter: @JeffSchuhrke.


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Can an employee on FMLA leave from work attend a night concert?

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A federal court in Texas has dismissed a claim of FMLA discrimination and retaliation by a woman who was fired after attending a Beyoncé concert while she was on personal medical leave. The railroad employee claimed that the company interfered with her rights under the Family and Medical Leave Act and illegally terminated her. The employer countered that she was fired for abusing the leave policy and failing to communicate with her managers per FMLA rules.

The Northern District of Texas judge shut down the woman’s claim with Beyoncé-like finality. But it raises the legitimate question of whether people on medical leave or family leave are entitled to enjoyment of life or expected to sit at home and recuperate in stoic solitude.

Employee’s actions during leave raised eyebrows

The Texas case, Jackson v. BNSF, involved a woman who was under pressure at work. Shortly after management placed her on a performance improvement plan, Ms. Jackson notified her boss that she was taking disability leave for an unspecified medical condition.

The Family and Medical Leave Act allows up to 12 weeks of unpaid leave for a personal health crisis or to care for a seriously ill family member. The employer is not entitled to full details or veto power. But the employer is entitled to ask for status updates and a schedule of when the employee expects to be in and out of the office.

At the beginning of her leave, Ms. Jackson was unresponsive to repeated inquiries about business matters, according to the court documents. A few weeks later, Jackson was spotted by a co-worker at the music concert. In fact, Jackson was watching Beyoncé from the employer’s corporate suite at the stadium.

The employer suspected her leave was an abuse of FMLA policy if not downright fraudulent. When asked to explain her presence at the concert, she did not respond. When pressed again, she emailed that her doctor had not cleared her to discuss work. When given an ultimatum to check in with her manager by a cutoff date, she did not respond. The company moved to terminate, and Jackson later filed suit for FMLA violations and retaliatory discharge.

What is the expectation of employees under FMLA leave?

The employee must give 30-day notice if the leave is foreseeable, or notice “as soon as practicable” if unforeseen. The employee must give the employer sufficient explanation of the nature of the leave. In the case above, Ms. Jackson told her bosses she was under a doctor’s care and was “not well to return to work.” A doctor could conceivably back up such a scenario.

By dismissing Jackson’s claim, the federal judge skirted the question of whether an employee who was not well enough to work could be well enough to attend a concert. Her disability leave, according to court documents, was ostensibly related to a “mental breakdown” over her workload and performance review. Returning to the workplace might have triggered anxieties that after-hours entertainment would not.

People on medical leave or family leave are not precluded from buying groceries, going to church, attending soccer games or otherwise “living their life.” But what about taking a long-planned family vacation while on leave from work? Or continuing with Wednesday night bowling league as a respite from caring for Mom during the day? Or seizing the golden opportunity to see “Queen Bey” from a luxury suite while on disability leave.

Such gray areas may merit legal advice from an employment law attorney. But one moral of the story for anyone on FMLA leave is to stay in communication with the employer. Once that dialogue is closed, the relationship may become highly adversarial.

This article was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 9, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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Trump’s new rule allows employers to drop birth control coverage with no oversight

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New contraception rules outlined by the Trump administration will allow employers to stop covering birth control — with zero government oversight.

The administration announced on Friday that, effective immediately, it was rolling back federal requirements introduced under the Obama administration which require employers to include birth control in their health insurance plans. Under the new rules, employers can simply self-exempt, citing religious or moral objections, and tell their workers that their birth control is no longer part of their health-insurance coverage.

Those employers are not required to tell the government either, according to PBS NewsHour correspondent Lisa Desjardins. They need to notify the insurers, and can send an optional note to the government.

The new rules fulfill a key campaign promise the Trump administration made to social conservatives, who have continually voiced dissent with the Obama-era federal requirement and challenged it in court. House Speaker Paul Ryan (R-WI) said it was a “landmark day for religious liberty” and would ensure that people “can freely live out their religious convictions and moral beliefs.”

But the rules are deeply damaging to women’s reproductive health, and reflect a wider trend of the Trump administration attempting to dismantle women’s access to health care by opposing abortion rights and cutting grants aimed at tackling teen pregnancy.

“They like to talk about these policies in isolation,” Adam Sonfield of the Guttmacher Institute told ThinkProgress’ Amanda Gomez. “They are not just trying to undermine contraceptive coverage. They’ve tried to cut Title IX funding, Planned Parenthood funding… you have to see it as a coordinated campaign.”

The ACLU, along with the Center for Reproductive Rights, Americans United for Separation of Church, and the state of California, have all said they intend to sue the Trump administration for denying birth control to women.

Conservatives have long insisted that the birth control rollbacks are designed to protect the religious liberty of groups who believe providing contraceptives would violate their moral beliefs. However, data provided by the Center for American Progress to Vox in August showed that the majority of the companies that had applied for and received exceptions were for-profit corporations. They included companies that worked in human resources, industrial machinery, and wholesale trade. (ThinkProgress is an editorially independent news site housed within CAP.)

According to Jamila Taylor, a senior fellow at CAP, the rules suggested Trump’s rollbacks “will open up the floodgates for nearly anyone to force women to pay out of pocket or navigate hurdles to obtaining additional cost for contraception… and simply chalk it up to moral opposition.”

About the Author: Luke Barnes is a reporter at ThinkProgress. He previously worked at MailOnline in the U.K., where he was sent to cover Belfast, Northern Ireland and Glasgow, Scotland. He graduated in 2015 from Columbia University with a degree in Political Science. He has also interned at Talking Points Memo, the Santa Cruz Sentinel and Narratively.


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Trump’s Justice Department Is Trying to Turn Back the Clock on Workers’ Rights 100 Years

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On Monday, the Supreme Court heard oral arguments in a trio of cases, captioned as NLRB v. Murphy Oil, that examined whether management commits an unfair labor practice when it requires employees to sign arbitration agreements that waive their right to wage class-action lawsuits. The question of whether an employee can give up her right to act in concert with other workers may seem technical, but it implicates the very core of collective action.

During the hearing, Trump’s Department of Justice clearly sided with employers, who are calling for significant cutbacks to workers’ rights to take collective action.

The significance of this case was evident throughout the oral arguments. On one side the National Labor Relations Board (NLRB) and a University of Virginia Law Professor argued that the issue implicates the basic employment rights of tens of millions of U.S. workers. On the other side, the Principal Deputy U.S. Solicitor Jeff Wall (“Solicitor”) and an attorney for the companies argued that these are technical issues related to contract and civil procedure.

The case revolves around a key question: Do forced arbitration agreements that ban collective or class legal actions violate Section 7 of the National Labor Relations Act (NLRA)? That section permits employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The employers’ and Solicitor’s position is that Section 7 only protects workers’ rights to get to the “courthouse door.” According to the line of reasoning this side presented in the courtroom, the NLRA gives workers the right to act together at work, but the moment their workplace concerns get to a legal forum, they have no right to continue together. Once they enter the courtroom or arbitrator’s chambers, the argument went, all parties must abide by the rules of the forum, be it the NLRB, the federal courts or the arbitrator. They argued that this principle applies even if those rules require workers to proceed individually.

The problem, of course, is that there is a long history of employers using forced contracts to require employees to waive their rights as a condition of employment.

Justice Ruth Bader Ginsburg invoked this history when she asked the attorney for the employers whether forced arbitration agreements are simply “yellow dog” contracts by another name. This was a reference to contracts where employees agree not to join a union as a condition of employment. (“Yellow dog” contracts were made illegal in the 1932 Norris LaGuardia Act.)

Justice Stephen Breyer put an even finer point on the matter when he expressed his concern that the employers’ position “is overturning labor law that goes back to, for [Franklin D. Roosevelt] at least, the entire heart of the New Deal.”

Nonetheless, the arguments of the management-side attorneys appeared to gain traction with conservative Justices. This iss despite the fact that the employers’ side consistently failed to address a key problem: the rules of the forum that they said everyone has to follow are not made by some neutral third party. They are written by the employer, who then makes participation in the forum a condition of employment for the employee to sign the agreement. Research shows that almost 25 million non-union workers have been forced to sign such arbitration agreements.

Yet, some Justices bought the management-side argument. At one point, Justice Anthony Kennedy, who seemed to be the swing vote in this case, insisted that workers can still engage in collective action because they can simply go to the same attorney and ask her to represent them each individually.

Presumably, Justice Kennedy did not intend to imply that the attorney could share the details of each of the cases with each worker, because that would violate the confidentiality clause in many of these agreements. And presumably, he did not mean that the attorney could share confidential information, because then there would be no attorney-client privilege protection.

The employers’ counsel agreed with Justice Kennedy, and said that even though the confidentiality clause would prohibit the attorney from sharing information among the workers, it couldn’t “stop the same lawyer from thinking about the three cases in conjunction.” In Justice Kennedy’s words, “that is collective action.”

In reality, forced arbitration agreements that prohibit class or collective action have grown exponentially in recent years through a tactical decision by corporations to strip Americans of their rights to litigate their claims together. The NLRB responded in 2012 to the growing use of these forced arbitration agreements by finding that these agreements violate federal labor law.

The liberal Justices repeatedly demonstrated that this case is not about neutral rules of a forum, or technical issues of civil procedure, but about basic concepts of power.

Justice Ginsburg asked the Solicitor, “What about the reality? I think we have in one of these cases, in Ernst & Young, the individual claim is $1,800. To proceed alone in the arbitral forum will cost much more than any potential recovery for one. That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.”

Justice Ginsburg was making the point that if workers cannot bring class or collective actions, many who have low-dollar claims will be denied justice because it would be more expensive to bring their cases than they could possibly win.

The Solicitor’s response was telling. He claimed that the different arbitration agreements have different clauses, which deal with issues of costs and fees. In essence, he insisted, the contract takes care of those concerns. And, in the final analysis, the employers’ attorney and Solicitor explained that the contract—even if it is a forced contract—should trump any possible rights workers may have to bring their actions collectively.

In a sense, this position answered Justice Breyer’s initial question: Yes, this case does bring us back to a pre-New Deal framework, and the employers and Trump administration are comfortable with that.

This case is poised to have a far-reaching impact. When the Supreme Court struck down a California law prohibiting consumer arbitration agreements that waive consumers’ rights to file a class action, such arbitration agreements ballooned. If the Court similarly holds that workers do not have a substantive right under the NLRA to vindicate their labor and employment rights collectively, then it is likely that soon almost every non-union worker will face even more limitations to real justice.

This blog was originally published at In These Times on October 4, 2017. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.


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Miners Working with Congress to Solve Pension Crisis

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Strong bipartisan legislation has been introduced in recent congressional sessions to solve the pension crisis currently facing America’s mine workers. The Miners Protection Act is a response to a growing insolvency problem with the Mine Workers (UMWA) 1974 Pension Plan. The legislation would protect the pensions of 87,000 current beneficiaries and 20,000 more who have vested for their pensions but have not yet begun drawing them. We’ve waited too long to see this problem addressed, and Congress should act now.

The pension fund for America’s mine workers began as a promise from President Harry Truman in 1946 that America would protect the health and welfare of coal miners, who were vital to the country’s safety and growth. In 1974, changes were made to the plan to strengthen these protections. But in recent years, a combination of extremely depressed coal markets, coal company bankruptcies and other factors have caused a significant dropoff in the employer contributions to the fund. In the past two years, contributions to the plan have fallen by more than $100 million, setting up significant problems in the near future, with the fund currently projected to go bankrupt in 2022 or 2023.

Specifically, the legislation would:

  1. Include a provision from the original Miners Protection Act allowing transfers of excess funds in the Abandoned Mine Land program to the 1974 UMWA Pension Plan.
  2. Direct the Treasury Department to loan the 1974 UMWA Plan funds annually to prevent insolvency.
  3. Cap the annual loan amount at $600 million and set the interest rate at 1%.
  4. Require the fund to pay interest only for the first 10 years and then pay back the principal plus interest over a 30-year term.
  5. Require the fund to certify each year that the pension plan is solvent and able to pay back the remaining principal and interest.
  6. Actuarial analyses indicate that the UMWA 1974 Plan would need to take loans for as little as four years.

Learn more about the legislation.

This blog was originally published at AFL-CIO on October 4, 2017. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.


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Construction job sites: the silent killer of immigrant workers

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The New York City Council voted unanimously on Wednesday to approve a safety bill that establishes safety protocols as a way to prevent construction worker deaths, following eight months of intensive review by lawmakers, day laborers, unions, real estate developers, and contractors.

The vote came nearly one week after two construction workers fell to their deaths hours apart in separate accidents.

That bill, Intro 1447-C, would establish safety training requirements for workers at construction sites. The legislation would require construction workers to receive at least 40 hours of safety training as specified by the Department of Buildings; allow employees to continue working while they complete the training; and develop a program that grants equal access to training for all workers, including day laborers and workers employed by certain small business contractors.

The bill also includes a required 40-hour class with the United States Department of Labor Occupational Safety and Health Administration (or OSHA). A fine of $25,000 could be charged to construction sites that don’t adhere to the safety regulations for not having trained workers.

“Too many fatalities have occurred on construction sites in this city.”

“Too many fatalities have occurred on construction sites in this city,” NYC Council Speaker of the House Melissa Mark Viverito (D) said during the council meeting Wednesday. “It has clearly become well past time to take action on ensuring the safety of our residents.”

“We are protecting every single worker,” Councilmember Carlos Menchaca (D) said at the same meeting. “The road was tough, but everyone was dedicated to that one mission … to make sure that not one more death come before us in construction sites in the richest city in the country, potentially the world, that we set an example for others. We want to change that culture today.”

The legislation, which is the third version of a bill that has been debated for eight months, couldn’t have come at a more important time. One week ago, two construction workers fell to their deaths in separate incidents across the city. One, a 43-year-old father of five originally from Ecuador, was wearing a harness, but was not clipped in, before falling from the 29th floor of a building in the Financial District. The other, a 45-year-old man, was wearing a safety harness, but wasn’t secured to the bucket lift before falling as the boom was descending. Another worker died at the same site in June.

There have been seven construction workers deaths in New York City so far this year, according to the NYC Buildings Department. In both 2016 and 2015, there were 12 deaths each year.

In a city where 26,739 new apartments are on track to becoming available this year and construction permits surged substantially in 2016 from the previous year, construction site accidents have long been a silent killer for immigrant workers. That has especially held true for Latinx and undocumented workers who may be too afraid to speak out against unsafe conditions for fear of deportation.

As the trend in worker fatality data indicates, Latinx and immigrant workers have morbidly expendable lives. As a whole, these two types of workers outpaced all other major groups for fatal work injuries across all industries. Just within the construction industry, a 2015 New York Times report found that safety measures at construction job sites were often “woefully inadequate” as determined by safety inspectors, government officials and prosecutors. Beyond that, a 2014 U.S. Bureau of Labor Statistics (BLS) survey found that fatal work injuries were the highest among Latinx workers than any other major racial/ethnic groups. Most recently, an AFL-CIO report from April, which surveyed 2015 BLS data across all industries, found that the “Latino fatality rate was 4.0 per 100,000 workers, 18 percent higher than the national average.” Among those Latinos who died, a full 67 percent were immigrant workers.

“Construction deaths and injuries has been an issue in our communities for a very long time and, frankly, it was not being addressed.”

Advocates for immigrant construction workers are glad for Intro-1447’s passage in large part because it puts a big spotlight on immigrant construction workers in the discussion on worker safety.

“Construction deaths and injuries has been an issue in our communities for a very long time and, frankly, it was not being addressed, so we’re thankful for the passage of Intro-1447,” Manuel Castro, the executive director at the workers advocacy group New York New Immigrant Community Empowerment (NY NICE), told ThinkProgress. “We want bad employers to be held accountable. Whenever there’s a construction death, whenever there’s an injury, that justice must come to those workers.”

Castro said that there weren’t many protections in place for immigrant construction workers before Intro-1447. Workers were given a 10-hour safety training. “The reality, however, is that a lot of workers start working on the sites without the training and it isn’t until weeks, maybe months after working that they look for a training and often they don’t find a training,” Castro said.

“They’re not given the appropriate training because the trainings aren’t vetted by anyone in the state,” Castro said. “The trainers are certified, but there isn’t much regulation over this. Other industries have a lot more extensive trainings.”

Castro and other NY NICE members were among those who held a “candlelight vigil” as city council members took a vote Wednesday with electronic candles to represent construction workers who had died on the job.

“When we talk about these issues, the people most impacted tend to be immigrant workers because some of the day laborers are without status,” Murad Awawdeh, vice president of advocacy at the advocacy group New York Immigration Coalition, told ThinkProgress.

“[I]t comes down to the responsibility of the entire industry to have and implement safety practices within the workplace,” Awawdeh said. “As long as everyone is doing it, everyone will be safe. Contractors, big or small, do deviate and try to cut corners and continue to put people’s lives at risk. How can we ensure that everyone — unions to nonunions, documented and undocumented — are protected? So this is just the first step.”

Awawdeh recounted waiting outside his office for a meeting earlier this week and seeing an immigrant construction worker fall about 50 feet. He explained, “We are seeing this happen on a daily basis at this point — the guy survived, but was not attached to anything.”

The bill has provided hope for both Castro and Awawdeh that the city is taking a big step to ensure the safety of its immigrant construction workers.

“It marks the beginning of something really important in New York City,” Castro said. “The city is taking an active role in protecting immigrant workers. As a worker center that works with immigrant workers and day laborers, this is a very important step. We want to ensure more is done, but this is a critical step.”

This article was originally published at ThinkProgress on September 28, 2017. Reprinted with permission.

About the Author: Esther Yu Hsi Lee is a reporter at ThinkProgress focusing on domestic and international migration policies. She has appeared on various television and radio shows to discuss immigration issues. Among other accolades, she was a White House Champion of Change. You can reach her at eylee@thinkprogress.org.


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The Trump Administration’s Backdoor Plan to Erode the Rights of Workers to Act Collectively

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On October 2, the U.S. Supreme Court will hear a case that implicates the very concept of collective action. NLRB v. Murphy Oil asks whether it is a violation of workers’ rights to force them to enter into arbitration agreements that prohibit collective or class litigation. Such agreements, often entered into as conditions of employment, require workers who want to sue their employers to do so individually in a private arbitration setting, rather than as a class of aggrieved workers who can pool their resources and knowledge. According to a recent study by the Economic Policy Institute, more than 60 million U.S. workers have now lost access to the courts because of such forced arbitration agreements.

Now, the Trump administration is entering the fray, submitting a brief to the Supreme Court in the Murphy Oil case aimed at advancing an anti-worker legal theory poised to erode protections for workers outside of the union context.

Such efforts could have far-reaching implications. In a 1997 paper for Arizona Law review, professor of law emeritus Jack Greenberg argued, “Civil rights and class actions have an historic partnership,” with class actions routinely used “to challenge discrimination in employment, education, the use of public facilities and housing, to assert prisoners’ rights, and to promote welfare reform, to name just a few areas that conventionally are put in the civil rights category.”

More recently, the NAACP went further, arguing in an amicus brief submitted in August 2016 to the Supreme Court that “American democracy depends upon our unwavering commitment to equal opportunity. Federal labor law honors that commitment by guaranteeing employees the right to challenge workplace discrimination through concerted activity, including picketing, striking and group adjudication of workplace rights.”

Yet, in recent years, the rights of most Americans to engage in concerted legal has greatly diminished. In a 2015 investigative series on this trend, The New York Times reported that, starting in 1999, a “Wall Street-led coalition of credit card companies and retailers”—with soon-to-be Chief Justice of the Supreme Court John Roberts Jr. involved—engineered a plan to get rid of class action lawsuits, because such lawsuits allow individuals to pool their power against companies.

Years later, in a pair of cases decided in 2011 and 2013, with John Roberts Jr. as Chief Justice, the Supreme Court narrowly held that companies could include contract provisions that require plaintiffs to go through arbitration instead of court, while waiving their rights to class actions.

A federal judge interviewed in 2015 by the Times explained that the result is that now, “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

The Times study of thousands of arbitrations—most of which are not publicly available—found that more and more consumer and labor and employment cases are being funneled into arbitration. Between 2010 and 2014, there was a 215 percent rise in arbitrations in labor cases over the previous four years. This represents a privatization of the justice system.

Furthermore, in many instances, the funneling of cases to individual arbitrations rather than class actions pressures workers into foregoing the process altogether. Looking at 2010 to 2014, the Times found that Verizon and Time Warner Cable, which have 140 million subscribers combined, faced only 72 arbitrations. After all, who would go up against an outmatched opponent alone?

It is understandable that workers would bow out, given that such arbitration settings are favorable to the employer. Unlike judges who are assigned cases randomly, arbitrators are chosen by the parties, meaning they are chosen regularly to arbitrate before the same corporations. If arbitrators against the corporations too often, there is a strong likelihood that the arbitrators will not be chosen again and therefore lose business in the future. This creates a financial incentive for arbitrators to side with corporations. The Times series notes that dozens of arbitrators “described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

Various attempts have been made to protect individuals from these arbitration provisions, including state laws holding these provisions to be unconscionable, as well as legal arguments claiming that such provisions violate federal anti-trust rules. But these arguments have failed at the Supreme Court. What has remained is the National Labor Relation Board’s (NLRB) position that Section 7 of the National Labor Relations Act (NLRA) protects workers’ substantive rights to join together in class actions. Section 7 provides that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB has taken the position that employment class actions constitute “other concerted activities,” which are protected under labor law. And workers cannot sign away these rights, in the same way that they cannot sign away the right to form or join a union. The Seventh and Ninth Circuit Courts of Appeals agreed with the Board that the employer violated workers’ rights by making them sign arbitration agreements with class action waivers, but the Fifth Circuit held otherwise.

This split in the circuits made the issue ripe for Supreme Court review, and the matter was indeed appealed to the Supreme Court in September 2016, and accepted for review by the Supreme Court in January 2017. At the time, President Obama’s Solicitor General filed a brief with the Supreme Court supporting the NLRB’s position. But Trump’s Solicitor General later changed this position in order to side with employers.

In this case, the Trump administration expresses a view of labor law in the Solicitor’s brief that completely reorients workers’ rights. The brief acknowledges that Section 7 of the NLRA contains what it terms “core” rights, which relate to unionizing and collective bargaining, but pushes aside all other concerted activities as only contained in “residual language” and therefore not deserving of the same level of protections. Such a reading of labor law effectively states that the law’s protections only apply to workers’ activities as they relate to unions.

However, the NLRB clearly states that “the law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.” These rights are far broader than the Trump administration acknowledges in its brief before the Supreme Court, and any limitation of them would greatly diminish the few rights workers have in the workplace.

This week, management-side Republicans gained a majority on the NLRB, and soon a management-side Republican will become the agency’s General Counsel. This new conservative Board is likely to shift labor law away from worker protections, as was the case during the George W. Bush years. However, Trump’s Solicitor’s argument goes much further. It invites the Supreme Court to formally bifurcate and limit workers’ rights to act collectively.

This piece was originally published at In These Times on September 28, 2017. Reprinted with permission. 

 About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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