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The New ‘Lavender Scare’ Is an Attack on the Working Class

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Maximillion Alvarez

Things are getting very dark in this country, and it’s likely going to get worse before it gets better.

At every turn — as collective society breaks down, as the ruling class continues to rob us blind, as humanity barrels towards climate catastrophe — working people are being encouraged to turn on each other and to see certain groups of their fellow workers as the enemy.

From the demonization and increasingly violent attacks against LGBTQIA+ people, to an extremist-dominated Supreme Court preparing to strip away queer people’s right to marry, to legislatures around the country working to eliminate trans people’s right to exist, we must respond to these assaults on our neighbors and coworkers with the same spirit of solidarity that gives life to labor’s eternal message: an injury to one is an injury to all.

In a special and urgent podcast episode, we speak with Gabbi Pierce and Martha Grevatt about how far the labor movement has come in defending the rights of LGBTQIA+ workers, how far we still have to go, and what role the labor movement can and must play in fighting for dignity and equality for all.

Gabbi Pierce is an organizer with the Communications Workers of America (CWA), co-chair of Pride at Work — Twin Cities, and she is the first transgender person to serve on the Minnesota AFL-CIO General Board. Martha Grevatt is a retired autoworker and member of the United Auto Workers (UAW); she formerly served as Executive Board member for UAW Locals 122 and 869 and was a founding member of Pride at Work.

This blog originally appeared at In These Times on August 1, 2022 and references a podcast that may be heard at its website. The full transcript is posted to the website as well. Reprinted with permission.

About the author: Maximillion Alvarez is editor-in-chief at the Real News Network and host of the podcast Working People.


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A Man Won a Lawsuit for an Unwanted Office Birthday Party: What it Means for Workplace Discrimination

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Madeline Messa

Like the infamous McDonald’s hot coffee lawsuit, this is one of those cases that leaves an absurd first impression but earns sympathy when its details are explored.

In April, a jury awarded a man $450,000 after he sued his former employer for throwing him a birthday party at work. 

However, there is more to the story. The man, Kevin Berling, asked his employer, Gravity Diagnostics, not to throw him a party as they usually did for their employees’ birthdays. He had an anxiety disorder, and he explained he feared his “bad memories” associated with his birthday would trigger a panic attack.

Disregarding his request, the employer threw a party anyway. 

Berling had a panic attack, and his employer fired him shortly after for “workplace violence.” Berling then sued Gravity Diagnostics for disability discrimination.

Despite the clickbait-sounding headlines this case made for, it is realistically about disability discrimination in the workplace. It should serve to remind employers they are obligated to make accommodations for disabled employees, including those whose disabilities are related to mental health. 

The Americans with Disabilities Act (ADA) Title I requires employers to provide disabled employees with reasonable accommodations to perform their jobs and enjoy the same access and benefits as their coworkers. 

In this case, the jury sided with Berling, finding his request to not have a birthday party was a reasonable accommodation for his disabling anxiety disorder. His employer did not deny the accommodation because of any undue hardship, but simply because they did not take the request seriously. Further, the employer fired Berling due to his panic attacks, creating a relatively clear-cut case for disability discrimination.

When people think of discrimination, they often think of race or gender and overlook disabilities. 

The U.S. Department of Labor’s Bureau of Labor Statistics reported last year that people with disabilities were far more likely to be unemployed than people without disabilities, regardless of age or education. Disabled people were also more likely to be self-employed than people without disabilities.

Accommodations are meant to close these gaps by providing disabled employees with tools and modified work environments needed to perform their jobs successfully. Accommodations can include allowing a cashier with chronic pain to sit at their register rather than stand all day, a sign language interpreter for a deaf job applicant — or respecting the request to not throw a birthday party for an employee who made it known it could give them a panic attack.

Accommodations are flexible, and not all disabilities call for the same accommodations. Employees should be able to comfortably ask their employer for an accommodation for their disability without fear of retaliation. 

Workplaces that are ignorant to disability law and unwilling to grant reasonable accommodations reinforce the unemployment disparity between people with and without disabilities, marginalizing disabled employees. 

Mental health is valid, and work is on the rise as a major source of stress for many people. In response to a Harvard Business Review survey, 76% of people suffered from at least one negative mental health symptom. Employers who deny reasonable accommodations to mitigate disabling anxiety only exacerbate the issue. 

Employers need to acknowledge the law and be receptive to disabled employees and job applicants. Putting up motivational posters in the break room to encourage overwhelmed employees to count to ten and imagine they are in a happier place is not going to cut it. 

This blog was published with permission.

About the Author: Madeline Messa is a law student at Syracuse University with a BA in journalism from Penn State. She is currently working as a legal and communications intern for Workplace Fairness.


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From fake customer accounts to fake job interviews, Wells Fargo is just the worst

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Laura Clawson

Wells Fargo is once again making headlines for being a terrible, unethical company even by the poor standards of the financial industry. Just over two years after the bank paid a $3 billion fine for opening millions of fake accounts in the names of actual customers, current and former employees are alleging that they were told to conduct fake interviews to fulfill Wells Fargo’s diversity policies.

Wells Fargo now has an official policy that for every open job paying more than $100,000, at least one “diverse” candidate—a woman or person of color—must be interviewed. But the company had apparently been doing what the NFL faces a lawsuit over: interviewing “diverse” candidates only after jobs had been promised to other (white, male) candidates.

From fake accounts to fake interviews, fake is very big at Wells Fargo.

Former Wells Fargo executive Joe Bruno says he was fired after telling superiors that the fake interview practice was “inappropriate, morally wrong, ethically wrong.” Wells Fargo says Bruno wasn’t the one retaliated against, but was fired for retaliating against a fellow employee. But whatever the reason for Bruno’s firing (and company claims that they didn’t retaliate against workers should always be viewed as suspect), The New York Times found seven current and former Wells Fargo employees who were instructed to carry out fake interviews and another five who were aware of the practice.

So the fact that a company spokeswoman told the Times, in an emailed statement, “To the extent that individual employees are engaging in the behavior as described by The New York Times, we do not tolerate it,” rings false. Because unless all seven current or former employees who had been told to conduct the fake interviews had the same superior telling them to do so, it’s not remotely a thing being done by “individual employees.” For that matter, if there’s one Wells Fargo executive senior enough to have multiple direct reports who are senior enough to be the ones conducting interviews, it’s also not an “individual employees” kind of problem.

The spokeswoman also said that maybe this had happened in the past, but not under current leadership, which came in following the fake accounts scandal. But three of the Times’ sources said they had conducted or been aware of the fake interviews happening this year.

Wells Fargo told the Times that 77% percent of the people hired in 2020 and 81% of the people hired last year were not white men, but refused to say what those percentages were for people being paid more than $100,000.

Discrimination is not a new issue at Wells Fargo, either. Twice in recent years, it has paid out millions of dollars over discrimination claims, once paying nearly $8 million in back wages and interest after a Department of Labor claim that it had discriminated against more than 30,000 Black job applicants, and once paying a $36 million settlement in a lawsuit by Black financial advisers who said they had been steered into poor neighborhoods and away from opportunities.

Wells Fargo’s credibility is low across the board. It sounds like they should be doing less issuing statements about how they did not do fake interviews and more assessing their exposure and getting ready to pay another fine or settlement. 

This blog originally appeared at Daily Kos on May 19, 2022. Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006. Full-time staff since 2011, currently assistant managing editor. 


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How Starbucks Workers Won in Mesa

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Starbucks Workers United (SWU) won its third store election February 28 in Mesa, Arizona. The vote was an overwhelming 25-3, with three additional contested ballots, despite heavy anti-union pressure from the company and in a state with only 5.4 percent union density.

“We led with kindness and care and just did our jobs in the face of union-busting from upper management,” said shift supervisor Liz Alanna, who helped lead the effort. Shift supervisors coordinate the day-to-day running of a store but are eligible for union membership because they don’t have hiring and firing power.

The Mesa store at Powerline and Baseline Roads became the first U.S. company-run store outside Buffalo to be unionized in the recent organizing wave.

Starbucks Workers United is now three for four in the elections held so far—and workers at more than 110 more locations have filed or announced their intention to unionize. A Canadian Starbucks also filed to unionize separately with the Steelworkers (USW) in January.

In Mesa, the company’s retaliation against a cancer-afflicted manager drove workers into the arms of SWU and Workers United, the Service Employees (SEIU) affiliate that has been supporting these union drives nationwide.

COLLAPSED ON THE FLOOR

‘It was just a huge slap in the face that our manager has leukemia, we never got support from another assistant store manager, and it was holiday season and we were getting slammed,” said Alanna.

The manager, 29-year-old Brittany Harrison, had been diagnosed with leukemia in October. Harrison requested paid leave, which was denied, and asked for an assistant manager to help at the store, which was also denied. She wanted to be able to make medical appointments and take care of herself as she coped with both the diagnosis and the illness.

But in November, when Harrison became aware of Starbucks’ planned union-busting strategy in Buffalo through a corporate meeting, she blew the whistle on the company. Harrison spoke anonymously to the media about a plan to send hundreds of managers to Buffalo Starbucks. She also made contact with Starbucks Worker United members in Buffalo.

Higher-ups stopped communicating with her. “I was getting ghosted by my supervisor and that sucked,” Harrison said. “My health was deteriorating.”

Starbucks company-owned stores are run by managers like Harrison, who have hiring and firing power and are not eligible to join barista unions. Above them are district managers who are responsible for multiple stores in the same area. Below them are assistant store managers, shift supervisors, and baristas, all of whom have been eligible to vote for the union. (NLRB regional directors so far have deferred the question of whether assistant store managers will ultimately be included in the bargaining unit to post-election proceedings.)

A bronchitis outbreak hit the store on November 10 and multiple workers called out. Harrison felt unwell November 11 and called out sick; the district manager told her that night she was not allowed to call out even though there were multiple shift supervisors present, and questioned her leadership ability.

The district manager went so far as to order Harrison to work the next day even though she had not been scheduled.

That night at 3 a.m., Harrison called her again to tell her she was too sick to work, but the district manager didn’t pick up her phone. Harrison even texted her photos of the temperature reader that showed she had a fever, but got no response.

The store was already short-staffed, and Harrison was forced to come in.

She ended up working until she collapsed to the floor after six hours. Unable to get up, she defecated on herself. Even then, she was forced to stay another hour because her district manager failed to send someone to cover for her in a timely way.

“This company will not be happy until I work myself to death,” Harrison remembers thinking. She put in her two weeks’ notice that day at the corporation she had once expected to retire at.

Starbucks fired her three days later, citing an “open investigation”; the charges were not disclosed to Harrison. Her Starbucks health benefits were cut off on November 16.

The coffee giant made $816 million in profits from roughly October through January and expanded by 484 stores in the quarter.

DON’T QUIT, UNIONIZE

Starbucks eventually tried to walk back the firing, claiming in a mass email to partners that it had never happened. By then, though, the cat was out of the bag.

When word spread through a group chat, “we were all really upset,” said Michelle Hejduk, a shift supervisor and worker leader. “People were talking about quitting. Somebody said ‘unionizing’—and everybody knew I was the main one that would talk about it with everybody.”

Hejduk had previously been an IATSE member in custodial work at Universal Studios in California and an SEIU member doing costuming at Disneyland.

She called Alanna that night; the two had talked politics before. Alanna remains a member of the American Guild of Musical Artists from her past work as an opera singer.

“Both of us were scared at first that we would get fired or lose our jobs,” Alanna said. She was pregnant and nearly due; she didn’t want to risk losing her family’s health insurance and owing thousands of dollars in hospital bills.

But after the pair talked with Workers United organizing adviser Richard Bensinger about legal protections for workers trying to unionize, they felt reassured enough to move forward.

By November 16, just four days after Harrison had collapsed in the store, the workers had enough cards to file for a union authorization election.

SWU raised $30,000 through crowdfunding to support Harrison, the uninsured and cancer-stricken whistleblower, in a striking display of reciprocal solidarity.

The Mesa store is not the only one where workers allege a retaliatory firing. In February, Starbucks fired seven unionizing workers in a Memphis store. Cassie Fleischer, a bargaining committee member, was also terminated from the Buffalo Elmwood location that was the first to win a union.

UNDERSTAFFING AND DISCRIMINATION

Like other Starbucks workers organizing around the country, Mesa baristas were motivated by understaffing, pressure to come to work sick, the company’s reluctance to stop accepting mobile orders when a store is overwhelmed, and a lack of worker voice.

“People who sit behind a computer do not know how to make a latte, do not know how to clean a toilet—we need to have a say,” said Alanna.

Many Starbucks workers around the country said that people tend to underestimate the amount of physical labor they’re required to do in an environment where there’s pressure to be efficient and customer-pleasing at all times. This includes everything from heavy lifting to being on your feet all day—in some shifts, for almost six hours with only a ten-minute break.

Another concern at the Mesa store was religious discrimination. Harrison, who is Jewish, filed a complaint against the district manager for anti-Semitism.

For example, when Harrison had a swastika painted on her house and the mezuzah torn off, the district manager suggested she should try to understand where the person who did it was coming from.

Harrison and workers in the store say that the district manager, whom Alanna described as “very Christian,” regularly prayed in meetings at which they were present.

“I’m Christian and even I find it very off-putting to have her reading a Christian story at the holiday meeting—I just think it’s weird,” Alanna said.

STALLING AND INTIMIDATION

There were 25 workers for the Mesa store the day they filed for election. But in a union-busting move, Starbucks started hiring. The number of eligible voters ended up at 43.

“They hired half the store just to say ‘no,’” Alanna said.

The company also flooded the store with management—another tactic it has repeated around the country.

Whereas when Harrison was diagnosed with cancer Starbucks wouldn’t add a single assistant manager to help the workers in Mesa, now it added three, plus two managers.

“We called them the babysitters,” Hejduk said. “We were not allowed to be there without them.” One day she was scheduled for the morning, but because a new manager couldn’t come in, the store did not open until 1 p.m.

The managers held captive group meetings (“listening sessions”) and one-on-ones to pressure workers over the union. One manager cried as she told a worker, “I want you to vote ‘no’.”

Hejduk found the episode “totally bizarre.”

“They’ve done so much wild stuff,” she said. “We’ve been desensitized to everything that’s happened.”

As it has done around the country, Starbucks argued to the NLRB that the appropriate bargaining unit would be the whole district, not just one store.

The company lost on this issue in a regional director’s ruling, but then filed an appeal with the NLRB’s head office. A ruling on the appeal was not made by February 16, the day the Mesa votes were to be counted, even though Starbucks had already lost on this issue at the NLRB in Buffalo.

As a result, the final vote count for the Mesa store was postponed pending a decision by the Board’s head office. It was eventually held on February 28.

The NLRB’s decision against Starbucks set the size of the bargaining unit at the store level rather than the district. This is expected to allow the Board to more quickly stop the company’s procedural delays on this issue moving forward.

NEW CAMARADERIE

As the organizing drive continues to build, SWU is building worker-to-worker contacts nationwide.

The day the Mesa workers filed their cards with the NLRB, they met over Zoom with Colin Cochran, a Buffalo-based SWU member, who told them what union-busting tactics to expect.

“Starbucks uses the same playbook everywhere and we know the ins and outs of it,” Cochran said over email. “It’s really fulfilling to be able to help other stores.”

And among the Mesa workers themselves, Alanna said the process of organizing has forged a new sense of community.

“Previous to this, night workers might never talk to day workers,” she said. Now they’re all on the same group chat, and are going out for food and attending parties together.

“I’ve worked in four different stores and I’ve never felt this kind of camaraderie before,” Alanna said.

Within weeks, SWU will know if it has managed to replicate the successes in Mesa and Buffalo through election wins in more stores and in other parts of the country. Next up: Seattle and Boston.

This blog was originally printed at Labor Notes on March 5, 2022.

About the Author: Saurav Sarkar is an Assistant Editor of Labor Notes.


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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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This image has an empty alt attribute; its file name is brian-chen-350x316-350x245.jpg

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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Photo of Robin E. Shea

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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