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Service + Solidarity Spotlight: San Diego and Imperial Counties Labor Council Rallies for Union Organizer/Teacher

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Working people across the United States have stepped up to help out our friends, neighbors and communities during these trying times. In our regular Service + Solidarity Spotlight series, we’ll showcase one of these stories every day. Here’s today’s story.

The San Diego and Imperial Counties Labor Council recently organized a rally in support of Jared Hutchins (CTA), a teacher and union organizer who was fired by High Tech High.

In late April, some 400 educators at the High Tech High charter school network filed for union recognition with the California Public Employment Relations Board as High Tech Education Collective (HTEC), becoming the newest members of the California Teachers Association family.

With 16 schools on four campuses and more than 6,000 K–12 students, High Tech High is the largest operator of charter schools in San Diego County.

A virtual rally on Zoom garnered nearly 50 supporters for Jared Hutchins. Hutchins said, “I fought and was fighting for teachers to have an equal voice at the table. It was because I was unapologetic about my purpose of bringing anti-racist practices into our schools.”

The California Teachers Association filed an unfair labor practice charge against the High Tech High charter school network for firing Hutchins, who has been helping to organize a union throughout the network.

This blog originally appeared at AFL-CIO on June 15, 2021. Reprinted with permission.

About the Author: Kenneth Quinnel is a senior writer at AFL-CIO.


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UBER’S NEW GIG WORKER BILL IS THE SAME OLD TRICK: DEREGULATION AND SPECIAL TREATMENT FOR EXPLOITIVE COMPANIES

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In New York State, legislators are reportedly considering a bill, brokered by gig companies including Uber and Lyft, that would remove app-based drivers and food delivery workers from virtually all labor and discrimination protections. Though its supporters are selling this “Right to Bargain Act” as a novel form of bargaining in the app-based economy, there’s nothing new about this anti-worker bill. It’s straight out of a well-worn playbook for companies like Uber, Lyft, Handy, DoorDash, and Instacart: Subvert labor laws, undo industry regulations, and duck accountability to workers and the public.

New York’s “Right to Bargain Act”

As drafted, the bill would permit certain unions, if certified by 10% of “active network workers” in each industry, to exclusively represent ride-hail drivers and delivery workers at an “industry council,” where they would negotiate with the companies over a set of bargaining topics.

After reaching an agreement, and if a majority of workers who vote approve the agreement, a state board would accept (or modify) the recommendations, and then implement and supervise the agreed-upon terms across the industry.

While “sectoral bargaining” can deliver improved labor standards in the right context, there are serious flaws built into the New York bill: It precludes some member-led groups that have organized app-based workers from representing workers in bargaining; there is no mechanism for rank-and-file workers to democratically participate throughout the bargaining process; and strikes and work stoppages are explicitly banned. Each of these provisions seriously calls into question whether workers could ever build and bring power to bear on the bosses sitting across the bargaining table.

Even more troubling about the legislation is that, in exchange for this bargaining system—compromised as it is—drivers and delivery workers would be unable to access any rights or protections under any New York state or local law. Gig companies would be free of any obligations to their workers under state labor law, disability law, paid family leave, paid sick leave, and city and state human rights law.

The companies would evade accountability even if a court finds their workers to be their employees, as they already have under certain laws in New York and around the country. That means a workforce of mostly underpaid immigrant workers and people of color in New York would be permanently excluded from foundational labor standards.

Worse yet, cities would lose the ability to legislate improved working conditions in the app-based economy. Even existing protections, like New York City’s Taxi and Limousine Commission (TLC) rules that create a pay floor for ride-hail drivers, would be dismantled. Under the proposed New York bill, Uber and Lyft drivers could start anew and bargain up—but only from half their current pay.

A Longer History of Anti-Worker Deregulation

Many have compared the New York bill to Proposition 22, a 2020 California ballot initiative that removed nearly all employment protections from app-based transportation and food delivery workers in exchange for newly-created “benefits” that already have proven illusory and mostly inaccessible to workers. The similarities, obviously, are there. But the roots of the New York bill go back further.

Ever since heralding the app-based economy in 2008, Uber and its peer companies have sought to preserve their business model—essentially, an illegal practice of misclassifying their workers as independent contractors to save as much as 30% of labor costs—by lobbying aggressively to rewrite the law to their satisfaction. More than anything else, the companies want to preserve the legal fiction that their workers are not employees—in order to profit off of their exploitation.

In 2014, Uber launched a national effort to pass state laws locking ride-hail drivers into independent contractor status, denying them their employee rights. The bills, which passed in more than forty states between 2014 and 2017, ushered in a wave of ever-worse carveout policies.

Newer state bills, this time pushed by the domestic work company Handy, created labor law exclusions for “marketplace contractors” across platforms such as Uber, Handy, and Postmates. In Texas, gig company lobbyists skipped the legislature entirely and targeted the state’s unemployment board in 2019 to implement a rule that disqualifies from unemployment insurance (UI) payments any worker dispatched through an app.

And yet, workers pushed back.

In recent years, ride-hail drivers, delivery workers, and other misclassified workers organized to fight for better working conditions. More than that, they started winning. The New York Taxi Workers Alliance led organizing and protests that eventually led to the creation of minimum pay for Uber and Lyft drivers in New York City in 2018. The next year, app-based workers mobilized support to push California legislators to enact Assembly Bill 5, a law that presumes that most people in the state are entitled to employment protections.

The Gig Companies’ “Third Way”

In the face of successful worker organizing, losses in court, and increasing public support of workers over the past couple years, the app companies pivoted: If they were to hold onto an exploitive business model, something had to give. Instead of outright denying unjust working conditions, they’d have to co-opt the language of workers’ rights and concede some limited benefits on the margins—while preserving the ultimate goal to exempt themselves from nearly all employer rules (see Prop 22 as Exhibit A).

…the app companies pivoted: If they were to hold onto an exploitive business model, something had to give. Instead of outright denying unjust working conditions, they’d have to co-opt the language of workers’ rights and concede some limited benefits on the margins…

At the same time, in the summer of 2020, the country erupted over the murder of George Floyd. Rather than paying a living wage or providing paid leave to a disproportionately poor, racialized workforce, the gig companies commodified the movement for Black lives. Uber, in particular, put its resources into this strategy—“If you tolerate racism, delete Uber”—to obscure the economic and racial subjugation of its drivers.

After winning their Prop 22 campaign in California, the companies had found their new approach: A “third way” between overt corporate extraction and full employment rights for their workers—veiled in the language of racial justice. Uber soon began pressuring the federal government to create a new system of regulation: A “third worker category” that would grant some limited benefits—such as a portable benefits system—while forever locking workers out of employment protections.

New York’s “Right to Bargain Act” is just that: A “third way” proposal—this time dressed up in a veneer of “collective bargaining”—that would excuse app-based companies from any accountability to their workers or to public social insurance funds.

And if this bill passes in New York, expect the companies to ramp up their efforts to derail the Protecting the Right to Organize (PRO) Act in the U.S. Congress and lobby for a “third worker category,” coordinated by the corporate mega-alliance the Coalition for Workforce Innovation.

Deregulation at that national scale doesn’t only concern workers in the so-called “gig economy,” it means degraded working standards and conditions for all of us, creating a legal avenue for any company to “gig” out its workers.

Deregulation at that national scale doesn’t only concern workers in the so-called “gig economy,” it means degraded working standards and conditions for all of us, creating a legal avenue for any company to “gig” out its workers.

Behind their “flexibility” and “new benefits” sleight-of-hand, the gig companies’ “third way” policies really are the same old trick: Corporate redistribution of billions of dollars from the poor and working class to the ruling elite.

Conclusion

After the companies’ long history lobbying against workers’ rights, legislators in New York and across the country should reject outright any proposal that has had input from companies like Uber, Lyft, or DoorDash. It is, instead, the workers on the streets—organizing for equal rights, better pay, and just labor standards—who must lead the way forward.

This blog originally appeared at Bloomberg Law on June 2, 2021. Reprinted with permission.

About the author: As a staff attorney at the National Employment Law Project, Brian focuses on combating exploitative work structures that subordinate workers in low-wage industries. Through litigation and policy campaigns, he supports workers’ efforts to build power at their workplace.


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The insidious deception that is “employment at will”

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Employers, don’t get played.

“This is an employment-at-will state, and I can fire you for a good reason, a bad reason, or no reason at all.”

Oh, yeah?

Technically, this is true in almost every state, but employers should not count on employment at will as their only defense in an unlawful discharge case.

Why? Because even if you’re in an employment-at-will state, you’re not. Not really.

First, if the employee has a contract of employment for a definite term (say, one year), then employment at will does not apply.

Second, even for the majority of employees who do not have such contracts, the employment-at-will rule does not apply to terminations that are conducted for unlawful reasons. And the list of unlawful grounds for termination has just about swallowed up the employment-at-will rule. Here are some reasons for termination that the employment-at-will rule doesn’t excuse: Discrimination based on race, sex, sexual orientation, gender identity, national origin, religion, color, age, disability, genetic information, retaliation for protected activity related to the anti-discrimination laws, interference or retaliation under the Family and Medical Leave Act, retaliation for reporting unsafe workplace conditions, retaliation for engaging in protected concerted activity under the National Labor Relations Act, retaliation for whistleblowing . . . 

I could go on all day.

The above reasons for termination are illegal in the reddest of red states. And if the state, city, or county where you operate is purple or blue — or if you’re a public sector employer anywhere — you can count on having even more exceptions to employment at will than these.

“But,” you retort, “I’m not terminating my employee for any of these reasons. I’m terminating him because I can’t stand him. Doesn’t that fall under employment at will?”

It could. Hating your employee for non-discriminatory, non-retaliatory reasons could be a legal reason for termination. But it’s complicated. An employee who is terminated only because the employer hates him — or for any arbitrary or unfair reason — may be able to persuade a government agency, judge, or jury that the employer’s stated reason is a lie and that the true reason was an illegal one. For example, “I agree that my boss hated me. Did you notice that she is a Millennial and I am 53 years old? She hates me (and therefore fired me) because of my age. That’s age discrimination!” 

So, how to deal with this?

Even in an employment-at-will jurisdiction, employers should make sure that their termination decisions are fair and in accordance with their policies and practices. This means providing some degree of “due process” to the employee who is being terminated:

  • If the employee is a poor performer, warn him about his deficiencies, reiterate your expectations and the consequences if his performance doesn’t improve, offer appropriate help, consider placing him on a performance improvement plan before termination, and give him a reasonable chance to shape up. And, of course, document all of that. If the employee can’t improve despite documented progressive warnings and a PIP, then you should be able to safely terminate him.
  • If the employee commits multiple minor infractions or has poor attendance and the absences aren’t covered by the FMLA or otherwise legally protected, provide progressive discipline that clearly spells out the problem and the consequences if she fails to improve. And, of course, document all of that. If it happens again after the final warning stage, then you should be able to safely terminate her.
  • If the employee commits serious misconduct (for example, dishonesty, harassment, or threatening or violent behavior) or makes a huge mistake (for example, that poor performer we were talking about makes a bookkeeping error that will cost you $1 million), conduct a thorough investigation based on the circumstances, and give due consideration to any evidence that the employee presents in his own defense. And, of course, document all of that. If, after conducting a fair investigation, you still think you have reason to believe that the employee is responsible and that the extenuating circumstances (if any) are insufficient, then you should be able to safely terminate.

This should work even in an employment-at-will state!

This blog originally appeared at Employment & Labor Insider on May 28, 2021. Reprinted with permission.

About the Author: Robin is editor in chief of Constangy’s legal bulletins and its three law blogs Affirmative Action AlertCalifornia Snapshot, and Employment & Labor Insider. She also produces ConstangyTV’s Close-Up on Workplace Law.


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Arizona and Many Other States Begin Legislative Process to Protect Employees Against Discrimination Based on COVID-19 Vaccine Choices (US)

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Daniel B. Pasternak

Currently pending before the Arizona legislature, Senate Bill 1648 would prohibit discrimination in the workplace (and elsewhere) against individuals who have not received or who refuse to receive a COVID-19 vaccine. As proposed, the bill would prohibit any employer from requiring a person to receive or disclose whether they have received a COVID-19 vaccine as a condition of being hired or remaining employed. The bill additionally would amend not only Arizona’s state statutes devoted to employment matters, but also would prohibit nearly any business or public space from limiting access to a person on the basis of their receipt or non-receipt of a COVID-19 vaccine to any indoor or outdoor spaces or buildings, places of public accommodation (as defined by A.R.S. § 41-1491), spaces that are owned, leased, operated, occupied, or otherwise used by a public body (as defined by A.R.S. § 39-121.01), and places that are generally open to the public.  This partisan bill, sponsored by seven Republican Senators, is not yet set for a vote.

Arizona is just one of many U.S. states that have seen legislation introduced targeted at protecting employees (and persons in general) who choose not to receive a COVID-19 vaccine. However, the protections in these bills, and to whom they apply, vary significantly from state to state. For example, some proposed bills would regulate only public employers (see below). Others don’t prohibit vaccine requirements, but impose limitations on them. For example, Montana’s proposed law allows employer vaccine mandates, but requires that any accommodations provided by an employer for individuals who refuse to obtain a vaccine due to medical or religious reasons must also be offered to any employee who refuses to become vaccinated, for any reason.

The list of states with currently pending vaccine anti-discrimination legislation, and links to the pending bills, includes: Alabama (here and here), AlaskaArkansasCaliforniaColoradoConnecticutGeorgia (public employers), IllinoisIndiana, Iowa (here and here), KansasMarylandMichiganMinnesotaMissouri (public employers), Montana (accommodations to employer mandated vaccine policy), New MexicoNorth CarolinaOhioOklahomaOregonPennsylvaniaRhode IslandSouth CarolinaSouth DakotaTennesseeTexasUtahVermont,  (public employers), Virginia (public employers), Washington, Wisconsin (here and here).  These bills are at various states in the legislative process.

For the most part, these bills would seek to override recent federal guidance from agencies such as the U.S. Equal Employment Opportunity Commission that employers may require employees to receive a COVID-19 vaccine as a condition of employment, provided that employees may be entitled to reasonable job accommodations in the event that a disability or sincerely held religious belief prevents them from being vaccinated. What a reasonable accommodation would be in such cases could vary dramatically on an employer- and employee-specific, case-by-case basis.  Further, where allowed, when seeking proof of vaccination or administering vaccinations themselves, employers must be mindful not to violate other applicable laws prohibiting disclosure of genetic information (Genetic Information Nondisclosure Act) or improper or overly broad medical inquiries (Americans with Disabilities Act). Whether these bills, if they become state laws, may be challenged on various bases, including possible preemption by any federal law, remains to be seen.

This blog originally appeared at Employment Law Worldview. Reprinted with permission.

About the Author: Dan Pasternak works with employers to solve workplace problems. Sometimes that involves helping develop, implement and enforce effective and business-sensible employment and traditional labor relations policies and practices. Other times, it involves representing employers in high-stakes litigation matters.


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WALMART, INC. TO PAY $20 MILLION TO SETTLE EEOC NATIONWIDE HIRING DISCRIMINATION CASE

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Retail Giant to Cease Physical Abilities Testing Which Disproportionally Excluded Female Order Filler Applicants, Federal Agency Charged

LOUISVILLE, Ky. – Walmart, Inc. will pay $20 million, stop using a pre-employment test, and furnish other relief to settle a companywide, sex-based hiring discrimination lawsuit filed by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Walmart conducted a physical ability test (known as the PAT) as a requirement for applicants to be hired as order fillers at Walmart’s grocery distribution centers nationwide. The EEOC said the PAT disproportionately excludes female applicants from jobs as grocery order fillers.

This alleged conduct violates Title VII of the Civil Rights Act of 1964, prohibits employment discrimination based on sex, including the use of tests administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex or any other demographic category. Employers using such tests must prove the practices are necessary for the safe and efficient performance of the specific jobs. Even if this necessity is proven, such tests are prohibited if it is shown there are alternative practices that can achieve the employer’s objectives but have a less discriminatory effect.

The EEOC filed suit in the U.S. District Court for the Eastern District of Kentucky, London Division. (EEOC v. Walmart, Inc., Case No. 6:20-cv-00163-KKC) on Aug. 3, 2020, after first attempting to reach a settlement through its prelitigation voluntary conciliation process. The parties reached agreement and filed a joint motion to approve a consent decree that same day. The motion was approved by the court and the consent decree was entered on Sept. 9, 2020.

The consent decree requires Walmart to cease all physical ability testing currently being used for purposes of hiring grocery distribution center order fillers. The decree also requires Walmart to pay $20 million into a settlement fund to pay lost wages to women across the country who were denied grocery order filler positions because of the testing.   

Michelle Eisele, EEOC Indianapolis district director said, “One of the EEOC’s six national priorities is eliminating barriers in recruitment and hiring. Employers need to ensure their testing and screening practices do not discriminate against any group.”

“The parties were able to reach an early resolution of this case due to Walmart’s willingness to engage in settlement discussions. Distribution center jobs provide good career opportunities for women when sex-based barriers to hiring for those jobs are removed,” said EEOC Regional Attorney Kenneth L. Bird.

“Walmart operates 44 grocery distribution centers nationwide. Elimination of the PAT will allow more women to obtain a relatively high-paying entry-level position at one of these centers – a necessary first-step toward advancement,” added EEOC Senior Trial Attorney Aimee L. McFerren.

The Louisville Area Office of the EEOC is part of the EEOC’s Indianapolis District, with jurisdiction over Indiana, Kentucky, Michigan, and parts of Ohio.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

This blog was originally published by the U.S. Equal Opportunity Employment Commission on September 10, 2020. Reprinted with permission.


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California Assembly Bill 9 Expands the Statute of Limitation for Discrimination Claims

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Statutes of limitations, are designed to ensure that an alleged victim does not delay in making a claim for damages or other relief.  A long delay can deprive the defendant of the evidence necessary to fight the claim. By failing to act with reasonable diligence to pursue a claim, relevant document may be lost and witnesses’ memories may fade.

With respect to claims under the California Fair Employment and Housing Act (“FEHA”), employees must file a complaint with the Department of Fair Employment and Housing (“DFEH”) and obtain a right-to-sue letter before filing in court.  Until January 1, 2020, employees had one year to initiate this process to exhaust administrative remedies.  Following the passage of California Assembly Bill 9, which amends Government Code sections 12960 and 12965, employees now have three years to file these claims with the DFEH.  But, AB 9 is not retroactive.  Old claims are not revived by the new law.

What Does AB 9 Do for Employees?

AB 9 represents a significant expansion of employee rights in California. The one-year statute of limitations will continue to apply to claims made under the Unruh Civil Rights Act, Ralph Civil Rights Act of 1976 and under Civil Code provisions addressing “Blind and other Physically Disabled Persons.”

AB 9 also includes four expansions of the three-year filing deadline for cases brought under the FEHA.

  • First, the statute of limitations is tolled (or temporarily stopped) for up to 90 days following a person’s discovery of the facts of the alleged discrimination.
  • Second, the statute is tolled for up to one year in situations where one first discovers the identity of the employer after three years have passed.  Thus, for example, the true employer might be disguising its identity within a maze of companies.  AB 9 provides a limited tolling under such circumstances to permit an employee to substitute the actual employer into the claim.
  • Third, the statute is tolled for up to one year in cases brought under Civil Code § 51.7 (Ralph Civil Rights Act of 1976) from the date the employee learns the identify of the person liable for the discrimination.
  • Fourth, the statute is tolled for up to one year after the person aggrieved by the discrimination reaches their majority (18 years).

How Does Exhaustion of Administrative Remedies Under the FEHA Work?

Filing a discrimination complaint with the DFEH requires the employee to complete an online form that identify themselves, their employer and the violations they allege occurred.  A failure to include all of the claims available or to sufficiently describe the claims being asserted can deprive the employee of the right to pursue the claims at the DFEH or in court.

After completing the complaint form, the employee is asked whether they wish to have the DFEH investigate the claims or to issue an immediate right-to-sue letter.  Generally, an employee should not ask for a right to sue letter unless they are represented by an attorney. Once the employee obtains a right-to-sue letter, the DFEH will stop any investigation.  The employee has one year to file a lawsuit based on the allegations set out in their complaint.

AB 9 is Not Meant to Encourage Delays

Although an employee in California now has three years to file a complaint with the DFEH, an employee being subjected to unlawful discrimination, harassment or retaliation at work should not delay too long to challenge those unlawful conditions.

Unreasonable delays can be used by the employer to argue that conditions must not have been very bad if the employee continued to work there.  In addition, evidence of the discrimination can be lost to time as witnesses move on to new places and new jobs.

Finally, delay often means that the employee will continue to labor under conditions that are intolerable.  While filing a complaint with the DFEH is not a fix-all solution to discrimination at work, initiating the complaint process can lead to positive changes there.  It is also a way for an employee to take back some of the power they have lost in the hostile environment.

Reprinted with permission.

About the Author:  Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.


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Dr. King’s Radical Revolution Of Values

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RichardEskowThis Monday, the nation celebrates Martin Luther King, Jr. Day. If he hadn’t been murdered, he would be 91 years old. How would Dr. King view today’s activists?

 

The words to his “I Have a Dream” speech will be repeated from podiums and in classrooms across the country. But many of the people repeating these words have never heard other King quotes, like this one:

“I am convinced that if we are to get on to the right side of the world revolution, we as a nation must undergo a radical revolution of values.”

King’s Answer

To those who condemn idealism, who preach the quiet cynicism of self-limiting “pragmatism” and insist it’s “how the world works,” Dr. King had an answer: He was, in his own words, “maladjusted.”

In a 1963 speech at Western Michigan University, he said:

There are certain things in our nation and in the world (about) which I am proud to be maladjusted… I say very honestly that I never intend to become adjusted to segregation and discrimination. I never intend to become adjusted to religious bigotry. I never intend to adjust myself to economic conditions that will take necessities from the many to give luxuries to the few. I never intend to adjust myself to the madness of militarism, to self-defeating effects of physical violence.

But in a day when sputniks and explorers are dashing through outer space and guided ballistic missiles are carving highways of death through the stratosphere, no nation can win a war. It is no longer the choice between violence and nonviolence. It is either nonviolence or nonexistence…

Dr. King also said: “This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”

“We must… realize,” he continued, “that the problems of racial injustice and economic injustice cannot be solved without a radical redistribution of political and economic power.”

A Radical Spirit

In other words, Dr. King was a radical.

A few years ago, invocations of Dr. King’s radical spirit were hard to find. They’re more common today, but even the best-intentioned of these pieces tend to place his radicalism in the past tense. That’s a mistake. Dr. King is gone, but his ideals live on.

We can never be sure how Dr. King might view current events, but he can still guide us through his rich record of words and deeds.

Here are six ways that the revolutionary spirit of Dr. King lives on.

Nonviolent Protests

Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored … there is a type of constructive, nonviolent tension which is necessary for growth.
– Letter From a Birmingham Jail, 1963

Some politicians who invoke Dr. King this holiday will try to reduce his memory to an emoji they can paste onto their platitudes. But Dr. King was a troublemaker, in the best sense of the word. He knew what it meant to create tension, and discomfort, and disharmony.

While he lived, Dr. King was the target of almost unimaginable hatred and condemnation. It rained down on him from the streets of Southern towns and the corridors of FBI headquarters, from the boardrooms of bus companies and the booths of Boston diners.

Dr. King preached communication, but experienced excommunication – from that cozy world of ‘insiders’ who may argue but will never risk their lives or careers for higher ideals.

Would Dr. King have supported the actions of NFL protesters and movements like Black Lives Matter? It’s hard to imagine otherwise. Their actions make some people uncomfortable, but he wouldn’t have been bothered by that. Protests, he wrote, “merely bring to the surface the hidden tension that is already alive.”

The attacks on BLM protesters and the blackballing of Colin Kaepernick would feel very familiar to Dr. King and his associates. It’s impossible to believe he would not see their struggle as his own.

As for their motivations, Dr. King said this in his “I Have a Dream” speech: “There are those who are asking the devotees of civil rights, ‘When will you be satisfied?’ We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality.”

The Struggle for Economic Justice

“Call it democracy, or call it democratic socialism, but there must be a better distribution of wealth within this country for all God’s children.” 
– Negro American Labor Council, 1961

King’s spirit also lives on in the movement for economic justice.

A 2014 Princeton study which has since been validated confirms that the United States has become an oligarchy, for all intents and purposes.  Multinational corporations are dictating the rules of employment and trade. The ultra-rich accumulate more and more of our national wealth and income, as the middle class dies and 40 million Americans – including one out of every five children – lives in poverty.

Corporations seek to inoculate themselves from being held accountable by promoting what they call “corporate social responsibility.”  A few people may be helped, but these programs are little more than coins flung at beggars.

Dr. King would probably not be impressed.  He would probably see more of himself in the work of groups like FED UP who are fighting for economic justice.

Expanding Access to Health

Dr. King also told the Medical Committee for Human Rights in 1966, “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.”

The provenance of this quote was questioned for years, until attorney and editor Amanda Moore tracked it down and confirmed it.  Dr. King said it less than a year after Medicare was passed into law.

Given what we know of his values, is it unreasonable to believe that Dr. King would stand with those groups that are fighting to ensure that Medicare’s protections are available to every American? And can there be any doubt that he would be committed to expanding Social Security, ensuring decent vacation and family leave benefits for all workers, and taking other steps to expand the social safety net?

The Fight for Workers’ Rights

The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together we can be architects of democracy.”
– Address to the Fourth Constitutional Convention of the AFL-CIO, August 1961

Dr. King’s spirit lives on in the most progressive and transformative elements of the labor movement.

He understood that inequality, “the glaring contrast of poverty and wealth,” could not be defeated without organized labor. Dr. King didn’t hesitate to challenge the labor movement when unions practiced racial discrimination.  But he was a fierce advocate for labor rights. He was in Memphis on behalf of striking sanitation workers, in fact, on that terrible night when bullets took his life.

Dr. King understood that the fight for civil rights was closely connected with the fight for workers’ rights. “Negroes in the United States read this history of labor and find that it mirrors their own experience,” he told the AFL-CIO. “We are confronted by powerful forces, telling us to rely on the goodwill and understanding of those who profit by exploiting us.”

An End to Militarism

“We are called to speak for the weak, for the voiceless, for the victims of our nation, for those it calls ‘enemy,’ for no document from human hands can make these humans any less our brothers.”
– Beyond Vietnam, 1967

His spirit lives in the groups fighting to end our country’s campaign of permanent war, and in the brave men and women who work to end the illegal and immoral practices of our military and intelligence services.

Dr. King said this, too, in his 1967 Christmas sermon on peace:

“… when we say Thou shalt not kill, we’re really saying that human life is too sacred to be taken on the battlefields of the world. Man is more than a tiny vagary of whirling electrons or a wisp of smoke from a limitless smoldering.”

He undoubtedly would have opposed the extrajudicial drone killings ordered by our current president and his two predecessors, and the torture campaigns orchestrated by the CIA.

This element of his spirit does not live on amongst the 117 Democratic members of the House, and the  41 Democratic senators, who joined their Republican colleagues in voting for an extravagant $770 billion boost to what was already the largest military budget in human history. They include some people who have been widely characterized as “progressive heroes.”

These politicians stand rebuked by the words Dr. King spoke to the National Labor Leadership Assembly for Peace in 1967:

Congress appropriates military funds with alacrity and generosity. It appropriates poverty funds with miserliness and grudging reluctance. The government is emotionally committed to the war. It is emotionally hostile to the needs of the poor.

The New Poor People’s Campaign

“A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth.”
– Beyond Vietnam, 1967

Dr. King’s spirit surely lives on in the recent revival of his Poor People’s Campaign, the project he was focused on at the time of his murder in 1968. This initiative, led by Revs. William Barber and Liz Theoharis, plans a “Poor People’s Assembly and March On Washington” on June 20, 2020,  to protest King’s “triple evils” of racism, poverty and militarism, and ecological devastation. This new campaign describes itself as “A National Call for Moral Revival.”

The original Campaign had a highly progressive economic agenda.  It called for $30 billion to be spent every year on anti-poverty programs. That would amount to roughly $213 billion per year in today’s dollars, or $2.13 trillion over a ten-year period. That may sound astronomical, but it’s not much more than Congress just gave away in tax breaks skewed toward the rich.

King’s Campaign was scheduled to begin with the construction a shantytown on the national Mall in Washington, DC, followed by a civil disobedience and mass arrests, and concluding with a nationwide boycott of major corporations and shopping areas to pressure business leaders to support its goals.

The original Poor People’s Campaign also called for a program of guaranteed employment and guaranteed income for all Americans, as well as the construction of 500,000 low-cost housing units each year until all slums were eliminated.

Jobs, income and housing for all. King’s vision is as radical and urgent today as it was fifty years ago.  A society dominated by the wealthy, one that has given so much to the few for so long, can surely do this much for the many.

Dr. King’s spirit lives on in the new Poor People’s Campaign, and in every place radicals gather to change the world.

Our only hope today lies in our ability to recapture the revolutionary spirit and go out into a sometimes hostile world declaring eternal hostility to poverty, racism, and militarism.

This is an updated version of a blog OurFuture publishes every year in honor of Dr. King.

This article originally appeared at Ourfuture.org on January 20, 2020. Reprinted with permission.

Richard Eskow is a Senior Fellow with the Campaign for America’s Future and the host of The Zero Hour, a weekly program of news, interviews, and commentary on We Act Radio The Zero Hour is syndicated nationally and is available as a podcast on iTunes. Richard has been a consultant, public policy advisor, and health executive in health financing and social insurance. He was cited as one of “fifty of the world’s leading futurologists” in “The Rough Guide to the Future,” which highlighted his long-range forecasts on health care, evolution, technology, and economic equality. Richard’s writing has been published in print and online. He has also been anthologized three times in book form for “Best Buddhist Writing of the Year.”


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Discrimination Based on Hair Styles is Now Illegal Under California Law

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Image result for patrick r kitchinThe Public Shearing of Andrew Johnson’s Dreadlocks

In December 2018, a video showed a white high school trainer in New Jersey cutting dreadlocks from 16-year old African American wrestler, Andrew Johnson. The lead referee had instructed him, ‘Cut your hair in the next 90 seconds, or you will be banned from today’s competition.’

The image is shocking: a white woman roughly cutting a black teenager’s hair in front of an auditorium filled with parents and children.  Andrew stared straight ahead.  The school initially argued haircut was needed for the safety of the wrestlers in accordance with standard rules about wrestlers’ hair length.

The justification for the act quickly was overpowered by its dreadful significance.  In response to the public outcry, the state attorney general’s office suspended the referee for two years, and ordered educators in all high schools in New Jersey to undergo implicit bias training.

A Conversation Begins

Public reactions to the video ranged from outrage to denial.  According to an April 17, 2019 Washington Post article about Mr. Johnson, residents of his hometown, in New Jersey had mixed reactions too.

Many who attended the match that night, saw the cutting of Andrew’s dreadlocks as an act of racial intolerance.  Others blamed Andrew himself for failing to follow hair length rules applicable to all wrestlers.  Some saw the event as proof that racism in America is endemic.  Others argued it was racist to claim that the cutting of Andrew Johnson’s deadlocks was an act of racial discrimination.

California Leads the Way

The California Fair Employment and Housing Act (“FEHA”) does not lay out an exhaustive list of acts and attitudes that violate the rights of job seekers and employees.  That is part of its strength.  If gives us the flexibility to decide whether an act or process is discriminatory based on the evidence in specific cases.

Instead of relying on a limited number of examples, FEHA sets out protected categories of people and conditions. One’s race falls into one of the protected categories.  Being disabled places a person into another.  A person cannot be harassed or discriminated against based on their status as a member or one or more of these categories.

Beginning January 1, 2020, policies and practices that target hairstyles associated with race constitute acts of discrimination in both education and employment.  Known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), Senate Bill 188 modifies the California Fair Employment and Housing Act and the Education Code.  The newly defined additional category states that discrimination based on race now includes “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

Senate Bill 188 Expands Protections Against Discrimination in Employment and Education

California has some of the most broadly protective employment discrimination laws in the nation.  The CROWN Act adds “Protective hairstyles” as an additionally protected category under the Fair Employment and Housing Act.  SB-188 also amends the California Education Code to prohibit discrimination based on “Protective hairstyles,” which “includes, but is not limited to, such hairstyles as braids, locks, and twists.”

In a world where physical appearance continues to be employed as a weapon for denying equal protection under the law to all citizens and residents, the new law makes a powerful statement about race and ethnicity-based discrimination.  “Hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals,” the Legislature declares.

The Legislature’s Preamble to SB 188

The Legislative preamble to SB-188 makes a powerful statement about hair in the context of the history of race discrimination and toxic ethnocentrism in America.

To combat bigoted ideas that have permeated “societal understanding of professional,” the preamble states, “Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group…, The Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.”

Watershed Moments

The public shearing of Andrew Johnson’s dreadlocks in 2018 is another watershed moment in the history of race relations in America.  The public haircut of a black child surrounded by white adults generated discussions across our country about who we are and how we think about, and treat, others.

Bigotry is almost always accompanied by insults denigrating others based on their physical characteristics, whether it be skin or hair.  The legislative preamble to SB 188 should be required reading for every HR manager, supervisor and educator in California.

Reprinted with permission.

About the Author:Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.


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Will The 2020 Contenders Take On Inequality?

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This blog was originally published at OurFuture.org on December 6, 2019. Reprinted with permission.

About the Author: A veteran labor journalist, Sam Pizzigati has written widely on economic inequality, in articles, books, and online, for both popular and scholarly readers. Sam Pizzigati co-edits Inequality.org. Follow him at @Too_Much_Online.


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When is a hairstyle not just a hairstyle? When it’s a pretext for discrimination.

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African Americans in particular find that their afros, cornrows and dreadlocks are held against them at school and when applying for jobs.

Employers in California no longer will be allowed to reject job candidates because they dislike their curls, coils, kinks or locks, after the governor signed a first-of-its-kind bill outlawing hair discrimination.

The new measure, signed Wednesday by Gov. Gavin Newsom (D), bans discrimination against a job candidate or school applicant for wearing natural hairstyles.

“There’s a human element to this. We don’t want to diminish people, we don’t want to demean people … We have to own up to the sins of the past,” Newsom said. “I hope that folks are paying attention all across this country.”

The bill was approved unanimously in both the California House and Senate.

The text of the measure states that throughout its history the United States has been “riddled with laws and societal norms that equated ‘blackness,’ and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.”

The issue is a particularly fraught one for African Americans who have been expected to style their hair to conform with Caucasian norms of beauty or acceptability, especially in the workplace.

“Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional,” the text of the legislation said.

Discrimination over her dreadlocks led Chastity Jones to fight a 10-year legal battle with an employer who fired her because she refused to get rid of the hairstyle. “It had nothing to do with the job,” she said. “It just had everything to do with my hair.”

Jones sued in 2013 for discrimination and lost wages, but her was dismissed by the court. The NAACP filed a petition last year on her behalf to the Supreme Court, but it declined to take the case.

And it has not just been a problem for workers: Last August, Louisiana sixth grader Faith Fennidy was kicked off the grounds of her Catholic school because her hair, neatly parted and swept back into braided ponytails, violated school policy.

ThinkProgress readers might also recall the case of Andrew Johnson, the high school wrestler in New Jersey who was told in December that he would have to submit to having his dreadlocks shorn off or forfeit the match.

California state Sen. Holly Mitchell introduced the anti-discrimination bill in her state, which extends the same protections that an individual would be afforded because of their skin color to their natural hairstyle and texture.

“The way the hair grows out of my head as a black woman is a trait of race,” Mitchell said, explaining the thinking behind her legislation, which has been dubbed the CROWN Act.

Reports say similar legislation is being considered in New Jersey and in New York, where a bill against discrimination on the basis of a person’s natural hair has passed both chambers of the state legislature and is awaiting Gov. Andrew Cuomo’s signature.

This article was originally published at In These Times on July 2, 2019. Reprinted with permission.

About the Author: Stephanie Griffith is a senior editor. She has worked as an editor and reporter for the Associated Press, The Washington Post, and Agence France-Presse, among other journalism gigs.

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