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New Jersey to get $15 minimum wage

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Since New Jersey shed itself of Chris Christie, things have been looking up. And now around a million of the state’s low-wage workers will be getting a raise. Gov. Phil Murphy and legislative leaders reached an agreement on $15 minimum-wage legislation, something Christie had previously vetoed.

Under the plan, most workers would get a $15 minimum wage in 2024. The first raise will come July 1, to $10 from the current $8.85, then rise by a dollar a year until it reaches $15. Once it reaches $15, it will be adjusted for inflation annually. The tipped-worker minimum wage will rise gradually from $2.13 an hour to $5.13 an hour.

Exceptions to $15-in-2024 include workers at businesses with five or fewer employees and seasonal workers, who will take longer to reach $15, and farm workers, who will get to $12.50 in 2024 and then be at the mercy of state officials to decide whether they should eventually reach $15. Because … farm work isn’t hard enough to be worth $15 an hour? There sure are always people lined up to demand crappy concessions on worker-friendly bills. But one key attempt at undermining the policy was defeated, and teen workers will get the full $15 in 2024.

As is so often the case, it’s imperfect but a huge step forward. And coming the same week as congressional Democrats introduced a $15 minimum-wage plan, it reinforces that the country, if not the Republican Party, is on the right path on this issue.

This blog was originally published at Daily Kos on January 19, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.


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Shutdown forces federal workers to consider career changes just to make ends meet

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Federal workers and contractors are growing increasingly weary with the partial government shutdown as they begin to feel the financial squeeze, leading many to reconsider government work.

Last Friday, many federal workers missed their first paychecks since the shutdown began on December 22 over demands from President Donald Trump that Congress fund a $5 billion wall along the U.S.-Mexico border. On Saturday, the shutdown became the longest in U.S. history, currently stretching into its fourth week, at 26 days.

ThinkProgress spoke with federal workers and contractors who are making tough choices about whether or not to look for other jobs, or stay in the federal government even if they are able to get back to work soon. The employees quoted in this story asked not to be identified by their actual names out of fear of retaliation.

“It has just been a nightmare”

Drew, a federal worker within the Department of Agriculture, said the shutdown is particularly difficult for them as they’re in their 20s and in the beginning of their career. When asked what they’re doing to stay afloat financially, Drew said they’re not going anywhere or doing anything that requires spending money. They have cancelled any unnecessary regular spending.

“I covered bills for this month but it’s a question of next month of whether I will be able to make it because I do unfortunately live paycheck-to-paycheck and my savings are rather limited,” Drew said. “It’s been terrible for my economic situation. It’s been terrible for my personal life. It has just been a nightmare.” 

A 2017 CareerBuilder report that polled 2,000 managers and more than 3,000 full-time employees found that 78 percent of full-time workers said they lived paycheck to paycheck. Drew added that it’s particularly tough that they can’t help cover expenses for their group house, which affects everyone else they live with.

Anne, a contractor who works with the Bureau of Lands Management, has started filing for unemployment. Contractors did not receive backpay during the 2013 shutdown and it isn’t expected that they will receive backpay after this one, unlike federal workers. Even the process of filing for unemployment reminded her that she isn’t considered as affected by the shutdown as federal workers. One of the questions she had to answer was whether she was a federal employee affected by the shutdown, but since she’s a contractor she was told to answer that she had been laid off due to lack of work.

“We have to be careful and not spend money, or make trips, or eat out, or go to movies as much, but I have some coworkers who are a lot more worried. They have kids, and in some cases supporting their entire family,” she said. “We have some savings, enough to cover me for probably a month, but if not, I’ll join up with some of my other coworkers and start looking for another job, which sucks but I am not there yet.”

Drew and Lee, a federal worker at the Department of Housing and Urban Development, said that they believe the shutdown may result in a wave of federal workers leaving their government jobs.

“I think most workers on the federal level think if we stick around long enough [President Trump] will be out of office and this whole thing will blow over and I am seriously reconsidering that approach,” Drew said. “I think everyone I know has been trying to stay there to be a force of good or consistency in whatever agency they’re working for and a month-long period to reconsider what you’re doing with your life and your place in the federal government is more than enough to make some people feel like they want to seriously change their mind.”

Drew said they think a lot of people who have worked for the government for a decade or longer will either leave through early retirement or by changing jobs. They added that a lot of people have already started looking for new jobs, which means the government could lose considerable talent and consistency in agencies.

Lee said the administration has been “hostile” to government workers since it began.

“There’s already a Baby Boomer brain drain and retirements in federal government due to Clinton and Bush administration hiring freezes,” Lee said. “This will just expedite that.”

Workers blame Trump and Republicans

Most of the federal workers and contractors who spoke with ThinkProgress said they put at least some of the blame on Trump, as well as Republican members of Congress. A majority of Americans share their views. According to a CNN poll conducted by SSRS, a market and survey research firm, 55 percent of people surveyed said Trump is more to blame for the shutdown than Congressional Democrats. President Trump’s approval rating has also dipped five points since last month.

“I’d put the blame 90 percent on Trump because his leadership is not good,” Anne said. “He’s not playing the game well. He’s drawing a line in the sand and he is not willing to cross it. He’s not even negotiating at this point. That’s what politics is about it’s about negotiation and he’s not doing that. He’s failing.”

Lee, a federal worker at the Department of Housing and Urban Development, is worried that the media coverage has been centered only on House Democrats and the president.

“There’s an entire other legislative body. People should be pressuring [Senate Majority Leader Mitch McConnell (R-KY)] to at least let the Senate vote up or down,” he said.

Drew said the blame should be shared by President Trump and Republicans in Congress. 

“This could have been avoided by the Congress that was leaving and they could have negotiated something earlier on when they had a full Republican house and Senate. Something could have gone through,” they said. “I assign blame for wall funding and wall funding was a tactic used by Trump to explain a very complicated issue. It has blown itself up into this one issue he has overwhelming support on and he is trying to stay behind it and it’s just not working.”

Most of the workers and contractors who spoke to ThinkProgress said they felt their communities were aware of how the shutdown affected workers, but when Anne visited family in New York for the holidays, she said they didn’t seem aware that she wouldn’t get paid.

“They were like, ‘oh yeah you’re going to get paid right?’ So I had to explain that a lot. Like, ‘no I’m not getting backpay,’” she said.

Her grandfather, who is conservative, appeared to feel differently about the shutdown once he knew how it would affect her, she said.

“He was like, ‘Oh who cares, shut it down.’ But when I explained to him how I was affected, he got kind of quiet and didn’t say anything. By the time we had to say goodbye, he said, ‘I hope you get back to work soon.’ So I think the awareness is not great, but it’s definitely growing.”

Lee said a conservative family member “changed his mind about the Republican Party” after the 2013 shutdown.

Workers say they are also exasperated that they are unable to continue projects that would benefit Americans, particularly marginalized groups. Anne noted that the Bureau of Land Management has recreational land that they are unable to keep safe and clean. Migration corridors, which maintain wildlife populations, for instance, are going to be delayed. Drew said that the USDA is unable to follow up with organizations on grant work, while Lee expressed concern about how people served by HUD will be affected by the shutdown.

“I have fielded a call from resident in HUD’s housing choice voucher program that needed a reasonable accommodation due to her disability,” Lee said. “Her housing authority wasn’t accepting her medical documentation and I needed colleagues in the field to help her file her fair housing complaint and potentially reach out to the housing authority to resolve the issue informally.”

He added, “She’s probably homeless right now.”

This article was originally published at ThinkProgress on January 16, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering 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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Here’s Why LA Teachers Are Walking Out in a Historic Strike

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After nearly two years of bargaining, public-school teachers in Los Angeles have initiated a strike in protest of their district’s policies. Starting today, teachers are picketing outside of their workplaces, underscoring an inveterate lack of investment in public schools made worse by a pro-charter-school “austerity agenda.”

From April of 2017 to January of this year, United Teachers of Los Angeles (UTLA)—which represents more than 35,000 teachers, nurses, librarians and counselors in Los Angeles Unified School District (LAUSD)—had been in negotiations with the district, and eventually reached an impasse. The union’s proposals address grievances including preferential funding for charter schools, and such related problems as inflated class size, inadequate support for special and bilingual education, and excessive standardized testing.

The strike is the culmination of a protracted battle against the de facto privatization brought on by the growth of charter schools, which are publicly funded but privately operated—that is, independent of local school board regulations. In Los Angeles County, charter-school enrollment has risen 35.7 percent since 2012 to 2013, rendering the county, among dozens of others in California, one of the fastest-growing hubs of charter-school education.

In recent years, Los Angeles charter-school advocates have generated unprecedented financing: Pro-charter groups, for example, were responsible for more than two-thirds of the $14.3 million in campaign spending in a May, 2017, LAUSD school board election. That election saw pro-charter candidates clinch a majority and, the following year, appoint former investment banker and deputy mayor Austin Beutner as superintendent.

Much of this growth can be attributed to charters currying favor with Wall Street and Silicon Valley as grounds for tax breaks, real-estate investments, and business opportunities. In Los Angeles specifically, charter schools have become the pet projects of prominent billionaires, including Netflix chief Reed Hastings and real-estate developer and financier Eli Broad.

UTLA contends that the political climate of the school board has stripped traditional public schools of funding. A 2016 report commissioned by the union found that charters had siphoned $591 million from traditional public schools. The union also says that the district has $1.86 billion in “unrestricted” reserves, which UTLA claims can be used to fund LAUSD’s public schools. Beutner argues that the reserve funds exist, but are already being spent.

According to UTLA treasurer Alex Orozco, there’s no evidence the reserve funds have been spent, and the current distribution of funds has bred untenable student-to-teacher ratios. Orozco told In These Times that he visits schools with average class sizes in the 40s—a number that LAUSD’s own statistics for middle- and high-school classes confirm.

Beutner responded to these concerns via an article in the Los Angeles Times, proposing “to add teachers and reduce class size at 15 middle schools and 75 elementary schools in communities that have the highest needs.” UTLA holds that this falls short. “You can just feel the disrespect,” Orozco said. “The proposal that he put out addressed class size, which in the 16 months that we were in negotiations, not once did they address class size. But they addressed class size at the bare minimum, which is focusing on our neediest schools.”

Availability of essential personnel outside the classroom, including nurses, librarians, counselors and school psychologists, has also been compromised. For the 2014 to 2015 fiscal year, California ranked as the worst state in student-to-teacher librarian ratios. Meanwhile, California suffers a troubling shortage of school nurses. UTLA maintains that nearly 40 percent of LAUSD public schools have a nurse for only one day a week. According to Orozco, many schools are forced to pay out of pocket for a nurse.

This scarcity disproportionately affects students with disabilities and special needs, who may benefit from more regular visits. After appointments, nurses and school psychologists “are spending a lot of time doing paperwork,” says special-education teacher and UTLA rank-and-file member Allison Johnson. “So if they’re only there one day a week, then how much time are they actually getting to provide care for the students?”

Johnson’s concerns raise questions about the district’s support for students who depend on accommodations for disabilities, language barriers, and other needs. Traditional public schools are legally required to provide for these students. Charter schools, however, aren’t held to the same standards. A report from the Los Angeles Board of Education found that, as of 2014, the percentage of total LAUSD charter students with severe disabilities was less than one-third that of traditional district schools.

Another symptom of charterization, UTLA says, is an excess of standardized testing. According to UTLA president Alex Caputo-Pearl, the district requires up to 18 discretionary standardized tests—despite mounting nationwide criticism of standardized testing—in addition to those mandated by the federal and state governments. Orozco told In These Times that these tests are administered so frequently in order to generate school performance data, which can be leveraged into justifications for charter models.

Tests “make it very easy for the charters to come and privatize our schools based on this data that was collected by these exams that really are not necessary,” he said. “We want our teachers to be able to use their professional judgment and assess the kids in many other different ways.”

When contacted for comment, LAUSD referred In These Times to its website, which includes the following statement: “We hear our teachers and want to work with them. Los Angeles Unified and teachers agree—smaller class sizes, more teachers, counselors, nurses and librarians in schools would make our schools better. We know teachers deserve to be paid more and a working environment where kids can have the best possible education.”

In addition to its class-size reduction proposal, LAUSD has offered a six-percent pay raise to teachers, back pay for the 2017 to 2018 year, and no changes to their health benefits. In anticipation of a strike, the district has already hired 400 non-union substitute teachers for its more than 600,000 students.

Still, UTLA, frustrated by “20 months of fruitless bargaining and lies and manipulation,” as well as Beutner’s and other criticism in the media of the educators for their demands and decision to strike, feel this is far from enough. Echoing the concerns of many of her colleagues, Johnson argues that while a strike isn’t ideal, teachers have been left with no choice.

“It’s not about the raise,” she said. “People are mad. They want things to change. They want the profession to be respected and to have what we need to be able to function as educators.”

This article was originally published at In These Times on January 14, 2019. Reprinted with permission.

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.


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As shutdown becomes longest in U.S. history, federal employees sue over working for no pay

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The government shutdown dragged on for a 22nd day on Saturday, making it the longest in American history. On Friday, 800,000 federal employees went without their paychecks. And though President Trump insists “the buck stops with everybody,”  51 percent of Americans are placing blame for the shutdown him and him alone, according to a Reuters/Ipsos poll.

On Friday, federal employee unions filed a lawsuit accusing the government of violating federal labor laws by forcing “essential” employees to continue to work through the shutdown, even though they aren’t being paid. These unions — the National Federation of Federal Employees, the National Association of Government Employees, the National Weather Service Employees Organization — have sued in the U.S. Court of Federal Claims. They allege that by not paying workers minimum wage and overtime, the federal government is violating the Fair Labor Standards Act.

In a statement, NFFE National President Randy Erwin said:

“In this country, when a worker performs a day’s work, he or she is entitled to a day’s worth of compensation. That is how working people provide for their families. Because of the chaos this wasteful government shutdown is causing, the government is trying to pay people in I.O.U.s. With this lawsuit we’re saying, ‘No, you can’t pay workers with I.O.U.s. That will not work for us.’”

The National Air Traffic Controllers Association also sued the federal government Friday, as its workers, too, work sans pay throughout the shutdown. Their lawsuit argues that the administration is in violation of the Fair Labor Standards Act as well as the Fifth Amendment, asserting that it “unlawfully deprived NATCA members of their earned wages without due process,” as the group wrote in a press release. According to The Hill, NATCA is asking for a hearing on its motion for a temporary restraining order against the government.

Politico reports that the Office of Management and Budget is working on “a special mid-cycle pay disbursement for impacted agencies” so that employees can be paid swiftly — that is, once the shutdown ends.

One thing that would not end the shutdown, according to the White House, is the declaration of a national emergency, a move Trump is said to be giving serious consideration.

Sources told Politico that White House officials have urged congressional Republicans to manage their expectations about the shutdown coming to a speedy conclusion in the event that Trump declares a national emergency at the border.

This article was originally published at ThinkProgress on January 12, 2019. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.


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Government shutdown will force Miami airport to close one terminal early in coming days

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Transportation Security Administration officials have tried to downplay the impact of airport security screening officers calling out sick during the government shutdown, but this one will be hard to wave off: Miami International Airport will be closing a terminal early for three days.

According to an airport official, “Due to an increased number of TSA screeners not reporting to work, we have decided to take this precautionary step and relocate about 12 flights to adjoining concourses in the afternoons.” Twice as many TSA screeners are calling out sick as usual at Miami, forcing this drastic move.

It’s another reminder of what it means when 800,000 people don’t get paid. If they go to work, “essential” employees like TSA screeners face costs for commuting and child care. If they stay home, they don’t have to pay their childcare providers … who then lose income as a more-or-less direct result of the shutdown. Just as the people who work in the shops and restaurants of the Miami terminal will presumably lose income when it closes early on Saturday, Sunday, and Monday.

In the case of TSA screeners, the economic pressure pushing them to call out sick will also affect travelers who may face longer lines at Miami in the coming days, just as passengers at New York’s LaGuardia did last weekend. And airport screening isn’t the only part of flying that’s taken a hit during the shutdown. Airline pilots have warned about the lack of FAA safety inspectors; flight attendants and air traffic controllers have warned about stresses on the air traffic control system; and industry groups summed it all up in a letter saying that “This partial shutdown has already inflicted real damage to our nation’s aviation system and the impacts will only worsen over time.”

This blog was originally published at DailyKos on January 11, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at DailyKos.


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Should Workers Be Punished for Being Employed By Subcontractors? This Legal Battle Will Decide.

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Over the last few decades, a growing number of American workers have effectively lost many of their labor rights because of the way their bosses structure the employment relationship. These workers are contractors who are hired by one company but work for another: the Hyatt Hotel housekeepers who actually work for Hospitality Staffing Solutions, the Microsoft tech workers who actually work for a temp agency called Lionbridge Technologies, and the Amazon warehouse workers who actually work for Integrity Staffing Solutions. These workers often perform the same work at the same place as other workers, frequently on a permanent basis.

But because their employers have entered into complicated contracts with each other, these workers have been unable to exercise their labor rights. If the workers can only bargain with the staffing company and not the lead company where they actually work, they are negotiating with the party that often has no power to change the terms of their employment. For that reason, workers have fought for a more inclusive definition under the National Labor Relations Act of what constitutes an employer—and when two employers are joint employers.

Recently, the Washington, D.C. Circuit Court of Appeals issued a major ruling that was a win for workers, and now this issue seems destined for the Supreme Court. As the legal battle heats up, workers everywhere should be paying close attention, since their livelihoods—or unions—could be affected.

Contracting expands as workers’ rights shrink

Under a traditional employment relationship, workers have one employer who has the power to hire, fire, pay, supervise and direct them. If such workers form a union, the law requires the employer to recognize the union and bargain in good faith. (Employers routinely violate the law and suppress workers’ labor rights, but workers at least have a theoretical path to collective bargaining.) Workers also have the right to picket and engage in other disruptive activities when they have a labor dispute with that employer.

However, there is a growing group of blue-collar, white-collar and service workers who find themselves working for two employers, either through contractors or temporary help firms. “In 1960 most hotel employees worked for the brand that appeared over the hotel entrance,” David Weil, former adminstrator for the Department of Labor Wage and Hour, explains in his 2014 book, The Fissured Workplace. “Today, more than 80 percent of staff are employed by hotel franchisees and supervised by separate management companies that bear no relation to the brand name of the property where they work.”

For those who work in a fissured workplace, organizing a union can be especially tough. The contracting firms have little power to raise wages or change working conditions, unless the company that controls the worksite agrees. Therefore, workers need both employers at the bargaining table.

Starting in 1984, the National Labor Relations Board (NLRB) began imposing difficult requirements to show that two employers are joint employers. By 2002, the NLRB was requiring that it be shown that the putative joint employer exercises direct and immediate control over employment matters. This meant that even when a company hired workers through a staffing agency to work at its site, chose the number of workers, gave specific work assignments and directions, and exercised supervision, it was not found to be a joint employer. Workers could, of course, form a union to negotiate with the staffing agencies, but those agencies usually have little room to maneuver alone.

Obama’s labor board

Recognizing this growing problem, in 2015 the NLRB changed the test to determine when two employers constitute a joint employer in its landmark Browning-Ferris Industries decision. No longer would workers have to show that both employers exercise direct control over them. Instead the NLRB recognized how power actually functions in the workplace and ruled that it would only require a showing that an employer had indirect or reserved control over the workers.

In its ruling, the NLRB recognized that for 30 years its approach to continuously adding requirements was moving in exactly the opposite direction from what was required: “As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded.” And indeed, according to data from the Bureau of Labor Statistics’ most recent Contingent Worker Survey, there are approximately 2.3 million workers who work for contractors or temporary help agencies, and this figure captures only a portion of those that one could reasonably find have joint employers.

The NLRB’s new Browning-Ferris test looked at whether two employers actually share or codetermine employment matters by also considering reserved or indirect control. Therefore, an employer could no longer avoid its liabilities and obligations by structuring its power in an indirect fashion. James Hoffa, the president of the Teamsters, the union that represented Browning-Ferris workers, said at the time, “This decision will make a tremendous difference for workers’ rights on the job. Employers will no longer be able to shift responsibility for their workers and hide behind loopholes to prevent workers from organizing or engaging in collective bargaining.”

Similarly, employer-side attorneys recognized the scope of the decision. In their dissent in Browning-Ferris, NLRB Members Philip Miscimarra and Harry Johnson wrote that the decision was “the most sweeping of recent major decisions. Attorney Marshal B. Babson who represented the U.S. Chamber of Commerce in its opposition to this case, said at the time, “The decision today could be one of the more significant by the NLRB in the last 35 years. Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

The right strikes back

Reaction among corporate groups and Republicans was immediate, severe and comprehensive. Within two weeks, both House and Senate Republicans had introduced the Protecting Local Business Opportunity Act, which would amend the National Labor Relations Act to define joint employers as those who “directly, actually and immediately” exercise control. In 2017, the House passed its version of the bill in a vote that fell largely along party lines.

Once the NLRB came under Republican control and was presented with a case that touched upon the joint employer question, the NLRB, in the Hy-Brand case, overruled Browning-Ferris. This decision was so potentially damaging to workers that former NLRB Member and current executive director of the Labor and Worklife Program at Harvard Law School, Sharon Block, wrote that the decision constituted part of a “December Massacre.” 

But then, on February 9, 2018, the NLRB Inspector General issued a memorandum that determined that there was a “serious and flagrant problem and/or deficiency” in the NLRB’s deliberations surrounding the Hy-Brand case. Specifically, the memorandum found that Hy-Brand was effectively a “do-over for the Browning-Ferris parties,” and since NLRB Member William Emanuel’s former law firm represented Browning-Ferris in that case, he should have recused himself. Following this memorandum and Emanuel’s recusal, the NLRB unanimously vacated its Hy-Brand decision that overruled Browning-Ferris—and announced that Browning-Ferris was still good law.

The fight heats up

The Republican-controlled NLRB, intent on overturning the Browning-Ferris decision, decided to pass a rule redefining joint employers under its rarely used administrative rule-making authority. But since administrative rules require the agency to go through a series of steps and collect public comments, this rule will likely take years to become final. 

On December 28, 2018, the Washington, D.C. Circuit Court of Appeals, which, according to The New York Times, is “widely views as second in importance only to the Supreme Court,” released its long-awaited decision on the Browning-Ferris appeal. The Court issued an important and unqualified win for workers in affirming the NLRB’s 2015 Browning-Ferris decision, agreeing with the NLRB that its new Browning-Ferris test was firmly grounded in the common law. Using the unfortunate legal language of “master-servant,” the Court explained that “retained but unexercised control has long been a relevant factor in assessing the common-law master-servant relationship.”

The court fully affirmed the NLRB’s new Browning-Ferris joint employer test, but it sent the case back to the NLRB, because the NLRB did not fully apply its new test to all the facts of the particular case. This means that the NLRB must use its Browning-Ferris test going forward, which is good news for labor rights. 

The case is now headed to the NLRB, but that is unlikely to be the end of the road for this major issue. It is quite possible that this matter will eventually end up before the U.S. Supreme Court, and this should be cause for some concern among workers. The Supreme Court currently has an ultra-conservative majority, which has shown no hesitation in rewriting decades of law in support of employers in labor cases. As recently as 2014, the conservative majority of the Supreme Court engaged in a bizarre misreading of the definition of joint employer in order to deny labor rights to home healthcare workers. With the addition of Brett Kavanaugh, the Court has become more conservative since that time. Labor may have won this latest battle, but the fight is far from over.

This article was originally published at ThinkProgress on January 10, 2019. 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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“So Bad I Had to Quit”: Understanding Constructive Discharge

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When is a resignation not considered a voluntary act?  When it is unlawfully coerced or the only escape from an intolerably hostile work environment?

A finding of “constructive discharge” is essentially the same as wrongful termination. The person technically quit but for all practical purposes they were pushed out. Federal employees alleging constructive discharge have a very short window to bring such a complaint.

What is constructive discharge?

Constructive discharge means that an employee, rather than being terminated, was forced to resign because of deception, coercion and/or unbearable treatment by the employer. In other words:

  • I quit because they lied to me about what would happen if I stayed.
  • I quit because they threatened to ruin me.
  • They made my job a living hell. I had no choice but to quit.

When an employee voluntarily leaves a job, they are typically not entitled to unemployment benefits. They are no longer entitled to due process through their employer. And they forfeit the right to sue for wrongful discharge. So it is in the employer’s interests to “encourage” employees to quit and characterize the exit as voluntary.

Involuntary resignation is not always constructive discharge

Quitting because of subjective feelings of “unfair” treatment is not grounds for a constructive termination lawsuit. Nor is quitting rather than face disciplinary proceedings or “I quit before they could fire me.”

In general, constructive discharge must meet one of these scenarios:

  • Hostile environment — The employee was subjected to retaliation, harassment or discriminatory conduct that created a hostile work environment so intolerable that a reasonable person would not be able to stay.
  • Coercion — The employer made misrepresentations or threats of adverse employment actions that the employee relied upon as a forced resignation.

You don’t have to prove that management conspired to make you quit, only that their actions or deceptions led you to believe you had no alternative.

Government workers must claim constructive discharge within 45 days

A landmark U.S. Supreme Court decision in 2016 (Green v. Brennan) clarified that the clock starts from the date of your resignation, not from the date of the manipulative or abusive conduct. For federal employees, that means you have just 45 days from your separation (the day you gave your resignation) to initiate a constructive discharge claim through the EEOC or the MSPB.

Where the complaint is filed depends on the underlying nature of the mistreatment, such as Title VII discrimination or whistleblower retaliation.

Don’t be too quick to quit your job

It is difficult to “undo” a resignation. If you storm out, dramatically shouting “I quit!” that is as legally binding as resigning in a formal letter. In general, it is harder to land new a job if you have already left gainful employment – you will have to explain the employment gap or explain why you left. Don’t do anything rash without getting legal advice.

In a perfect world, you should remain on the job and exhaust all of your due process rights, including filing a formal complaint of harassment, discrimination or retaliation. Obviously, if it gets so bad that your physical and mental health are jeopardized, you may conclude you can longer go back to work. Hopefully by then you have reported and documented the mistreatment, reprisal or inadequate response. Ideally, you will have another job lined up before leaving.

This blog was originally published by The Attorneys of Passman & Kaplan on January 8, 2018. Reprinted with permission. 

About the Author: 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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Federal workers protest against government shutdown across the country

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As the partial government shutdown stretches into its third week — making it the second longest shutdown in U.S. history — federal workers in Philadelphia took to the streets Tuesday to protest the White House and congressional inaction that has left them without work and pay for 18 days.

About 150 workers from various government agencies, including the Transportation Security Administration and the Department of Housing and Urban Development, joined the rally organized by the American Federation of Government Employees (AFGE), with the support of the National Treasury Employees Union (NTEU). Organizers called for an end to the shutdown that began late last month over President Donald Trump’s demand for $5 billion in funding to build a wall along the U.S.-Mexico border.

Nearly 800,000 federal workers across the country have been affected by the shutdown.

“It is unconscionable that many employees are having to work – and in some cases overtime – with no pay whatsoever,” NTEU National President Tony Reardon said in a press release Monday. Reardon’s organization filed a lawsuit against the Trump administration Monday, alleging that the shutdown violates the Fair Labor Standards Act by requiring federal employees to work without pay.

“Many of us used our credit cards to pay for Christmas and now we’re being hit with high interest rates on that. So, it’s really overwhelming,” Jan Nation, a protester who works for the EPA, told NBC Philadelphia Tuesday. “We don’t want a wall, we want to do our jobs.”

Philadelphia rally organizers also plan to travel to Washington, D.C. on Thursday for a second protest outside the AFL-CIO headquarters. Several hundred workers from multiple unions are expected to attend Thursday’s protest, which will be followed by a march to the White House.

Federal workers in St. Louis and Boston have also organized or plan to hold rallies in opposition to the government shutdown, despite Trump’s comments to reporters last week that federal workers “agree 100 percent with what I’m doing.”

In St. Louis, which is home to a U.S. Department of Agriculture office that employs 1,200 federal workers, a small contingent of USDA employees spent much of last Friday and Monday rallying outside their offices.

“We’re just tired of being held hostage,” Don Pusczek, a USDA accountant, told the St. Louis Post-Dispatch Friday. “The longer it lasts, the more the bills pile up and don’t get paid.”

Federal workers in Boston also plan to hold an AFGE-organized rally Friday outside the offices of the Environmental Protection Agency in the city’s Post Office Square.

“Federal employees want to go back to work. They believe in their mission and want to provide quality services to the American people,” AFGE President J. David Cox Sr. said in a statement Monday. “These are real people, with real lives and real responsibilities. It’s time to end this shutdown, open the government, and get federal employees back on the job — with pay.”

This article was originally published at ThinkProgress on January 8, 2019. Reprinted with permission. 

About the Author: Elham Khatami is an associate editor at ThinkProgress. Previously, she worked as a grassroots organizer within the Iranian-American community. She also served as research manager, editor, and reporter during her five-year career at CQ Roll Call. Elham earned her Master of Arts in Global Communication at George Washington University’s Elliott School of International Affairs and her bachelor’s degree in writing and political science at the University of Pittsburgh.


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Trump wants to dismantle decades of discrimination protections

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The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.

For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.

Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.

Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”

This article was originally published at ThinkProgress on January 3, 2019. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. 


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Economy Gains 312,000 Jobs in December; Unemployment Rises to 3.9%

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The U.S. economy gained 312,000 jobs in December, and the unemployment rate rose to 3.9%, according to figures released this morning by the U.S. Bureau of Labor Statistics. This report shows an increase in unemployed workers and while wage gains are stronger, they are not consistent with a tight labor market. This ongoing financial and economic volatility means that the Federal Reserve needs to hold off on more rate increases.

Last month’s biggest job gains were in health care (50,000), professional and business services (43,000), food services and drinking places (41,000), construction (38,000), manufacturing (32,000) and retail trade (24,000). Employment in other major industries—including mining, wholesale trade, transportation and warehousing, information, financial activities and government—showed little change over the month.

Among the major worker groups, the unemployment rates rose for blacks (6.6%), adult men (3.6%) and Asians (3.3%). The jobless rate for teenagers (12.5%), Hispanics (4.4%), adult women (3.5%) and whites (3.4%) and showed little or no change in December.

The number of long-term unemployed (those jobless for 27 weeks or more) declined slightly in December and accounted for 20.5% of the unemployed.

This blog was originally published by the AFL-CIO on January 4, 2019. 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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