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Workplace Retaliation: What to Know and Examples

Posted on March 6, 2023March 1, 2023 by Alana Redmond

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What is workplace retaliation? According to the Department of Labor, workplace retaliation is “when an employer (through a manager, supervisor, administrator or directly) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.”

Retaliation can seriously impact an employee’s life and livelihood. It may also be used by employers as a way to discourage others from taking similar action, although this is illegal.

Protected activities that employees may engage in include:

Reporting discrimination or harassment
Complying with a harassment investigation
Refusing to comply with orders that would result in discriminatory action
Requesting reasonable accommodation for a disability or religious practice
Filing a complaint
Inquiring about pay or hours
Reporting harassment
Asserting workers rights
Resisting sexual advances, or intervening to protect someone else from sexual advances

Workplace retaliation is a serious issue that if left unchecked can foster a toxic work environment and lead to legal consequences.

Workplace retaliation can take many forms, here are some examples.

Demotion or Termination

Demotion and termination are some of the most severe forms of retaliation. If an employee engages in a protected activity and is demoted or terminated as a result, it would be considered retaliation.

Reduced Hours or Pay

Reducing hours or pay is a more subtle form of retaliation, but still can have a considerable impact on the employee’s livelihood.

Opportunity Exclusion

Excluding an employee from an opportunity in response to them engaging in a protected activity is retaliation. Opportunities can include training, meetings, promotions, and more.

Creating a Hostile Work Environment

Another form of retaliation is when a hostile work environment is created. This can be through the form of intimidation, threats, or harassment by coworkers or employers.

Disciplinary Actions

When an employer disciplines an employee for engaging in protected activities, this is workplace retaliation. Disciplinary action can include verbal reprimands, suspension, or unwarranted write-ups.

Workplace retaliation is an issue that should not be taken lightly. The ramifications can have severe consequences on both employers and employees. Employers must take preventative measures to educate employees on retaliation. They can do this by providing training on anti-retaliation policies and procedures, and making sure that they foster an environment where employees feel comfortable enough to report illegal conduct without fear of retaliation.

If you are an employee who believes they have experienced retaliation, you should consult with an attorney right away to understand your rights and learn about potential legal courses of action. Be sure to find a lawyer that is experienced in employment law for the best chance at a successful claim.

It is important to note that retaliation claims can be difficult for employees to prove. Employees will need to provide ample evidence that their employer’s actions were in direct response to their engaging in a protected activity. While it can be challenging to prove, it is not impossible. Especially with the help of an experienced employment law attorney.

This blog was contributed to Workplace Fairness.

About the Author: Alana Redmond is a worker’s rights advocate and consumer safety writer who works with The Janda Law Firm, an injury law firm dedicated to enacting workplace fairness across the country

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Proving Sexual Harassment in the
Workplace

Posted on March 29, 2022March 29, 2022 by Sharon Feldman

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As allegations of sexual harassment in the workplace continue to make the news, the question of how victims should respond remains unanswered. Even when no celebrities are involved, it can be difficult to convince those around you that a boss or co-worker is acting inappropriately.

A study conducted by Harvard Business Review found that although women’s reports of sexual harassment have decreased following the #MeToo movement, reports of gender harassment have gone up. This means that we still have a way to go, and that harassers may be acting in more subtle ways. According to a 2018 study by Pew Research Center, 69% of women who reported experiencing sexual harassment said it happened in a work setting.

As a brief refresher, the two main types of workplace sexual harassment are quid pro quo and a hostile working environment. Quid quo pro sexual harassment refers to offering something in exchange for the sexual act, such as a promotion or raise. A hostile work environment is fairly self-explanatory, but essentially means creating an uncomfortable environment due to inappropriate comments, behavior, or physical touch. All workplace sexual harassment is federally illegal under Title VII of the Civil Rights Act.

Barriers to Justice

Gathering admissible evidence is crucial to workplace sexual harassment cases. This is because most companies have a policy requiring proof “beyond a reasonable doubt.” The standard that courts use is a lower one – “preponderance of evidence” – but private companies can set their own rules. Unfortunately, this means that without a confession or witness statement, it is incredibly hard to prove harassment.

The other policy creating a barrier is confidentiality. Even if the accused is found guilty, (and if they are, they are rarely punished), no one at the company will find out. That makes it difficult for potential victims to avoid the perpetrator around the workplace.

Burden of Proof

When sexual harassment in the workplace does occur, it unfortunately falls on the victim to prove. They will need to show four things: 1) they belong to a protected class (in this case gender), 2) they have been subject to harassment/unwanted sexual advances, 3) the harassment was based on sex/gender, and 4) the harassment was severe enough to create a discriminatory or abusive workplace. The fourth point is often the hardest to prove.

Victims of harassment will need to gather any evidence they can, which can be difficult. One way to establish a pattern of harassment is to simply document it privately. While the ideal evidence would be an email, text, video, or audio recording, that’s difficult to obtain.

If you are experiencing harassment at work, no matter how minor, you should begin documenting it. Every single time an instance occurs, write it down. Create a document or use your phone’s notes app to start a list. Write down as much information as possible, such as: the date, time, who was involved, what was said/done, were there any witnesses. If there were witnesses, that will help your case.

Retaliation is a very important issue in the world of workplace harassment. It is defined as any action that may deter someone from participating in an activity protected by antidiscrimination laws. A 2020 study conducted by the U.S. Equal Employment Opportunity Commission (EEOC) found that 55.8% complaints that year related to retaliation after reporting workplace sexual harassment.

A famous example in the news would be the Harvey Weinstein case. Because Mr. Weinstein had authority over the careers of the women he harassed, he was able to allegedly threaten retaliation if they spoke up. Unfortunately, just like sexual harassment, retaliation is very difficult to prove without hard evidence. If you experience harassment or retaliation in the workplace, remember to take detailed notes and establish a pattern of behavior – then report it.

This blog was printed with permission.

About the Author: Sharon Feldman is a writer based in San Diego, California, who is passionate about safety and equality. When not writing blogs, Sharon can be found at the beach with her dog.

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Here’s What’s in the New Bill Jointly Backed by Uber and the Teamsters in Washington State

Posted on February 28, 2022February 28, 2022 by Luis Feliz Leon

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Uber’s lobbyists, after clinching an agreement with UFCW Canada to launch a charm offensive at the Ontario provincial government for employee-like benefits on behalf of an estimated 100,00 drivers, weren’t done hobnobbing with unions.

Next up, the Teamsters in Washington state are working on a deal with Uber and Lyft.

The legislation would give ride-hail workers new benefits—sick pay, a process to appeal deactivations, protections against retaliation, and workers’ compensation—in exchange for codifying their status as independent contractors rather than employees, and preempting cities from regulating the rideshare companies as Seattle has done.

Washington lawmakers passed the bill, HB 2076, backed by Teamsters Local 117,
with 55 yeas to 42 nays on February 23. The Senate will hold a public hearing February 26.

“HB 2076 exemplifies Washington State’s spirit of leadership and innovation,” Teamsters Local 117 Vice President Brenda Wiest wrote to House representatives February 22 in an email obtained by Labor Notes. “This bill is supported by both Uber and Lyft, as well as the Teamsters, their affiliated Drivers Union, and dozens of labor and community-based organizations across the state. Moreover, it is backed by the people who matter most—the drivers themselves.”

The Teamsters international declined to comment on the legislation.

FLASHPOINT OF DEBATE

It’s a flashpoint of debate in the labor movement: should unions keep fighting for employee status for gig workers, or cut a deal to head off worse odds down the road? After all, unions and drivers are squaring off against Uber and Lyft, who with their bottomless pits of cash forced their way in California in a 2020 ballot initiative, Prop 22.

The companies have made explicit the threat that, if they don’t get this legislative compromise, they will pursue a ballot initiative in Washington. Lyft has put $2 million into a newly formed political action committee Washington Coalition for Independent Work with clones in New York, Illinois, and Massachusetts. It also has the backing of Instacart, DoorDash, and Uber, which have committed to contribute to the PAC.

What’s curious about this bill is that it has the backing of Teamsters Local 117 and its affiliate Drivers Union, which previously supported efforts to boost gig worker protections. Drivers Union members said the rationale for throwing their support behind a legislative deal with Uber and Lyft is the ballot initiative threat.

“They’re also holding the gun at our heads with the possibility of an initiative,” said Don Creery, 68, a ridehail driver since 2013 and a board member of the Drivers Union. “They spent $200 million on California. It comes down to the reality that we don’t have the money to buy TV ads. They do. They will misinform the public with a barrage of TV ads, so we will lose an initiative. We could lose everything.”

Jake Laundry, 29, has been an Uber driver since 2015; he is a member of both the Drivers Union and IATSE Local 15, where he is an audiovisual worker. He considers himself a Teamster and didn’t want to say anything that would jeopardize the union. But he’s heard that pitch about the initiative threat too many times. Laundry views this bill as making “a deal with the devil.”

“It’s great you have a wage floor and then will improve wage conditions in outlying areas [outside] of Seattle,” he said. “But this contractor relationship also locks in a sort of technocratic feudalism.”

Creery has no qualms with contractor status. “I’m not really concerned about us not being designated as employees,” he said. “In our union, we abandoned that seven years ago, eight years ago. We can be independent contractors and get rights. These are laws that can be changed by us, and we did.”

The Drivers Union’s biggest victories, though, were won at the city of Seattle—and this bill would put an end to that by reserving the regulation of rideshare companies to the state.

“Now you’re just kind of at the whim of the state legislature, which swings really moderate,” Laundry said. “Here in Washington, we have crazy secessionists that want a holy war. We’re not gonna get any labor victories out of them.”

PAY RAISES

What Creery feels “conflicted” about is the pay raises in the bill. “If you’re a Tacoma driver, it’s really outstanding pay rates,” he said. Currently, “once you leave Seattle city limits, our pay drops by 40 percent.” Drivers in Tacoma, who now get 80 cents a mile, would increase to $1.17.

Waiting time and travel miles without a passenger in the car would be uncompensated, though, and the base fare would be between $3 and $5.17 per trip. “To pay one of us $3 is class warfare,” said Creery.

The bill establishes two tiers of pay. For trips originating in cities with more than 600,000 people (Seattle), the rate would be $1.38 per mile driven with a passenger in the car and 59 cents per minute. Those figures are based on Seattle’s Fair Pay Law, which took effect January 1, 2022. Elsewhere, the rate would be $1.17 per passenger mile and 34 cents a minute.

Yearly pay increases based on the cost of living would begin September 30, 2022.

Mohamed Diallo, 33, has been driving for Lyft and Uber since 2017. He’s in favor of the legislation because his rent in Kent has skyrocketed. He also wants to extend the benefits like sick pay and the right to contest deactivations through an appeals process beyond Seattle to Kent and other parts of Washington state.

He said other drivers from his native Guinea are also in favor of the bill, describing it as “wonderful news.”

“Last year, my two-bedroom used to be $1,500,” Diallo said. “Today I talked to my leasing office because my lease is going to be over and I have to sign a new one. It’s $2,030.” He also feels the financial strain at the gas pump; he’s averaging $180-$200 to fill the tank of his Toyota Highlander SUV. He says the new legislation will increase his average earnings from about 90 cents per mile in Kent to $1.17, and spare him the commute into Seattle where the rates are higher.

Diallo works six days a week, 12-hour shifts, with only Tuesdays off. He has two young children, a boy of six months and a two-year-old girl. “The most important thing about the bill is I will get more money to put food on the table,” he said.

Uber touts “flexibility” as a perk it offers to drivers. But “I don’t think flexibility is as important for the guys with the Teamsters,” said Laundry, who connected me with Diallo. “They’re driving 70, 80 hours a week. They’re just scrambling to support their families. They’re working their tails off, so they don’t really have a flexible life.”

THE BEST WE CAN GET?

Why would any union agree to be involved in these compromise bills? The argument goes that we’re not going to win on employee status, plus there are innumerable hurdles to organizing gig workers at scale… so creating a third category, an independent contractor with at least some labor rights, is the best deal the labor movement can get.

Nicole Moore from Rideshare Drivers United in California finds a contradiction in that position. “There’s more demand for unions, a better minimum wage, and labor rights,” she said. “Compromise is absolutely the wrong direction. This is not to say we can’t get legislation on the road to employee status—but not at the cost of our labor rights.”

The app-based companies and their labor collaborators tout the notion of creating “portable benefits” that follow you from gig to gig. But “labor rights are portable benefits,” Moore said. “I have my rights to unemployment. If I get hurt on the job, I have portable benefits to workers’ compensation. Anything other than that is taking some people completely out of the picture.”

For Moore, the defeatist attitude that employee status isn’t winnable harks back to the National Labor Relations Act’s exclusion of agricultural and domestic workers. Like those workforces, the gig workforce is largely people of color and immigrants.

A personal vehicle makes for a very isolated and lonely workplace, which is why most gig workers’ organizing kicks off online. “We know each other in the parking lot of the airports,” Moore said. “We know each other online, because we find Facebook pages and Reddit in order to share information and understand. We are ready to organize.”

DEVIL IN THE DETAILS

In the breezy language of Wiest’s email to state representatives, the benefits of the deal appear excellent. But not all that shines is gold. It can be a spear.

One of the sharpest daggers in the bill is preemption—giving the state government the exclusive power to regulate rideshare companies, so that Seattle could no longer enact wage increases or new rules about drivers’ working conditions.

“The Teamsters-affiliated Drivers Union has already won the nation’s leading labor standards for Uber and Lyft drivers at the local level in Seattle,” said Kerry Harwin, communications director for the Drivers Union, in a statement to Labor Notes. “Seattle’s first-in-the-nation protections have demonstrated a meaningful impact for Uber and Lyft drivers, who enjoy the highest minimum wage in the country, the nation’s first paid-sick days for gig workers during the pandemic, and the country’s only legal protections against unfair deactivations.”

Seattle’s City Council passed the Gig Worker Paid Sick and Safe Time ordinance, backed by Teamsters Local 117, in June 2020. Since then the city’s Office of Labor Standards has reached a $3.4 million settlement for violation of the policy with Uber and a $1 million settlement with the online food delivery company PostMates. It also reached a $350,000 settlement with DoorDash and PostMates in violation of a pandemic-related hazard pay law for food delivery workers; each company had to pay restitution to about 3,000 workers.

In September 2020, Seattle hiked the minimum wage for Uber and Lyft drivers to $16.39 per hour (it’s now $17.27) and required the ridehail companies to pay drivers at least 56 cents per minute drivers are traveling to pick up a passenger or carrying one; it also covers driver expenses.

For Uber and Lyft, this combination of a progressive city council and workers organizing was too much. Their business model depends on misclassification, and on state government footing the bill for benefits that employers are traditionally on the hook to provide. So they went to the legislature.

NO BENEFITS DURING ROVING TIME

In the email to state representatives, Wiest said the bill would provide rideshare drivers with workers’ compensation under the “same robust state-run program that protects employees in Washington State.”

But in fact, workers’ comp would only be in effect when a driver is on the way to pick up a passenger or actually has a passenger in the car; the legislation describes these activities as “dispatch platform time” and “passenger platform time” respectively.

This leaves workers vulnerable if they get injured between fares, while they are roving and awaiting a new trip request. A 2020 UC Berkeley Institute for Research on Labor and Employment study estimated this cruising without a passenger is 35 percent of their work time. This method is also used to calculate the premiums that Lyft and Uber will pay into state coffers for workers’ comp.

Weist championed the paid sick protections, which she said would be “at the same accrual rates for all workers.”

But paid sick leave would not accrue at the same rates for independent contractors as it does for employees. Again, it would exclude the time drivers are waiting for passengers, and in this case also the time they drive to fetch them after being pinged for a trip. Drivers would only earn paid sick time when a passenger is in the car, which the same study estimated to be roughly 53 percent of their work time. As a result, drivers will have to work twice as long as other workers to qualify for the same amount of time off.

“We are frontline workers—providing trips to nurses and other essential workers during the pandemic,” said Ahmed Farah, a Drivers Union member who has driven for Uber and Lyft since 2016, in an emailed statement. “As a father of three, paid sick days is a very important protection when my kids get sick.”

Drivers would be eligible for unpaid sick leave after working for 90 days for a ridehail app.

Paid family leave was included in an earlier draft of the bill, but was scrapped from the final legislation. Weist’s email doesn’t mention the change, but Drivers Union staff continue promoting the idea that it is in the current bill.

Unemployment insurance will be studied by a “work group of stakeholders” drawn from labor and the gig industry with the deadline of producing a report by December 1, 2022.

‘DRIVER RESOURCE CENTER’

Protection from retaliation and an appeals process to negotiate driver deactivations are critically important for drivers. How would the legislation address this? It would provide a direct line of funding for the Drivers Union, which presumably meets the criteria in the legislation to serve as a “driver resource center.” (It may be the only group to qualify, since the bill says such a group must be able to demonstrate that it has past experience representing rideshare drivers and “providing culturally competent driver representation services.”)

A driver resource center’s services will be paid through a 15-cent per-trip surcharge on riders, with dues membership modeled after the Independent Drivers’ Guild (IDG) in New York City, a Machinists-affiliated company union of Lyft and Uber drivers that receives an undisclosed amount of funding from both companies.

And what would it do? The legislation makes scant mention of what services drivers would receive from the resource center. Asked about that, Harwin, the spokesperson for the Drivers Union, didn’t elaborate much: “It will provide support services to drivers, including representation” when faced with a deactivation.

??The state treasury would oversee the fund. The state director of the Department of Labor would choose the driver resource center through what the bill describes as a “competitive process.” Workers won’t have a say in choosing the non-profit organization, nor in how the money is spent.

The legislation also says the “driver resource center may not be funded, excessively influenced, or controlled by a transportation network company.”

Joe DeManuelle-Hall wrote last year when a similar draft legislation was floated in New York that at a 10-cent surcharge, a similar resource center would have netted $75,000 per day—a staggering $27.5 million per year, based on a calculation of 750,000 rides daily in New York City shortly before the pandemic.

FOLLOW THE MONEY

The idea of bringing an IDG-like deal to the West Coast can be traced back to disgraced ex-Teamsters leader Rome Aloise.

Aloise, once a vice president of the international union, was eventually found guilty of taking gifts from employers, negotiating a sham contract, and using union resources to rig a local union election—and then of running Local 853 and Northern California’s Joint Council 7 while he was suspended from the union for these offenses. He has been “permanently barred from the Teamsters” and “permanently enjoined from participating in union affairs” effective January 31, 2022.

But back in 2018, Aloise was still in power and trying to cut a deal with Lyft and Uber. Among the many exhibits and court documents compiled when he was brought up on internal union charges were various emails from that fall discussing plans (never realized) to create employer-linked driver guilds in Seattle and San Francisco.

Aloise proposed that Seattle’s Teamsters Local 117 and the Workers Benefit Fund, which has ties to Uber and Lyft, should jointly “support the creation of legislation and a guild infrastructure for Seattle Drivers.” In a document shared with WBF CEO Benjamin Geyerhahn, Aloise wrote: “WBF will provide with [sic] polling, legislative support, legal support, its expertise and its relationships with Uber and Lyft. This support includes financial support for these items carrying through until legislation is passed. In exchange, it receives the Teamsters full support and exclusive right to provide benefits to the Seattle drivers…”

In a revealing email to a few other California Teamsters leaders on November 21, 2018, Aloise wrote: “Maybe it is worth talking about setting up a Driver’s Guild in SF, and then of course expanding it at a later date… In NY, a lot of money is pouring into the Guild and back to the Machinists who were behind the establishment of the Guild.”

One year later, he wrote on February 1, 2019: “[Local] 117 heavily involved and substantial negotiations this coming week with both companies. The issue, of course, is how to stop any legislation which would give our core industries any loop hole [sic] to move into this TNC [Transportation Network Company] type model, while allowing Lyft and Uber to operate with some type of meaningful representation for the drivers.”

In 2018, he exchanged emails with former Service Employees president Andy Stern about the need to protect “core industries” for the Teamsters– package delivery and freight transportation– in order to enter into an agreement with Uber. “For any of this to get any traction in California, it will need to have some language about staying out of certain functions, which are core industries to the Teamsters, i.e.; such as package delivery, freight transportation, etc. If there is to be a carve out of their ‘industry,’ this will be essential, and perhaps a model for the other companies to deal with the ramifications of the Dynamix decision.” (At the time, the state’s Supreme Court in its Dynamix decision ruled against misclassification, creating a framework for standards to determine employee status.)

Last-mile transportation and delivery has gigified rapidly since 2018. Think: Uber Freight and Uber Eats. In September of 2020, United Parcel acquired Roadie, a crowd-sourced, same-day delivery company. FedEx bought Shoprunner. Amazon, Walmart, and Target have adopted and expanded their speedy gig-delivery business models to everything from yoga pants and furniture to pet food.

“Online competitors are shipping it from a distribution center going across multiple zones where we’re taking it in the back of a DoorDasher’s car for the same cost as if it was a tennis ball, delivering it the same day, and delivering it at lower cost,” said Petco CEO Ron Coughlin in a March 2021 interview.

What’s to protect UPS Teamsters from their work shifting to Roadie?

Update: this article has been updated to clarify that paid family and medical leave aren’t included in the current bill. But Weist and Drivers Union staff continue to promote the perks of the bill with those as included benefits. It has also been updated to reflect what the passage of the bill would mean for Teamsters in freight and transportation. —Editors

This blog originally appeared at Labor Notes on February 25, 2022

About the Author: Luis Feliz Leon is a staff writer and organizer with Labor Notes.

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A Bunch of Union Organizers Explain What’s Wrong with Unions

Posted on October 8, 2020October 9, 2020 by Hamilton Nolan

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Here is the most fundamental quandary of unions in America: Polls show that 65% of Americans approve of unions, and half of workers say they would join a union. But only about 10% of workers are actually union members. In the yawning gap between those numbers lies the entire story of the American labor movement’s decline.

The systematic decades-long assault on labor power by right-wing business interests is the biggest contributor to union weakness, but by itself it is not a sufficient explanation. Why is there such an enormous disparity between the number of people who want to be union members, and the number who are union members? And how do unions close that divide? There is no shortage of opinions on these questions, but we asked the one group of people who know the most and appear in the media the least: professional union organizers.

A dozen organizers responded to our call and shared their thoughts about how unions got so deep in a hole, and how to get out.

How did we get here?

Fear

“I do not honestly believe it is possible to separate ‘political issues’ from that gap between support and membership. Yes, stuff like Right to Work and anti-worker National Labor Relations Board appointments harm working people, but right-wing austerity, gutting of the public safety net, and lack of universal health coverage is a huge factor here as well. To me, the biggest reason people don’t join a union or organize their workplace is because their boss has too much power over their lives. When I worked on an external new organizing campaign at United Healthcare Workers West I spent a ton of time talking with workers who were terrified of losing their job if they organized or publicly supported the union because it would mean losing healthcare coverage or financial ruin for their family. A lot of people truly just feel lucky to have a job. And while in theory, yes, they would love to have a union, they are more afraid of rocking the boat. I went to work on the Bernie campaign with the purpose of trying to change that. While card check or the Protecting the Right to Organize (PRO) Act would certainly make it easier to win unions and first contracts, until losing your job doesn’t mean losing your healthcare coverage and ability to cover rent, it is always going to be an uphill battle.”

— Danny Keane, organizer-representative with Service Employees International Union (SEIU) 221

Service unionism

“I’ve seen union-busting both hard and soft, and these employers have gotten so good at narrowing the focus of the union. Sure, people support unions in broad strokes, but when it gets down to the possibility of you forming a union, the boss is so good at either scaring people or convincing people that union dues are not a worthwhile ‘investment.’

While right-wing forces have eagerly tried to turn unions into irrelevant third parties, unions have alienated themselves from workers as well. I think that unions have simply shifted away from empowering workers. Through an overzealous focus on contract enforcement through grievances and through some anti-democratic measures, unions have, in effect, made themselves a third party to the workers. These shifts didn’t happen overnight, and I think intentions behind them were good, just misguided.

Take grievances, for instance, which appear to be a win-win: Workers get their issues heard with legal support, and unions get to justify their increasingly bureaucratic structures by bogging themselves down in the drawn-out grievance procedure. But in the long-term, relying too much on the grievance system hurts worker power. Grievance procedures are purposefully slow and bureaucratic, and, by design, grievances are limited solely to narrow contract enforcement. They take the power out of the workers’ hands and put the decisions into the hands of lawyers and an ostensibly neutral arbitrator. They limit workers’ imaginations from dreaming of ways to improve and transform their workplaces. And they turn the union into a third-party service that tries to clean up messes for the price of biweekly dues.

Unions have also taken anti-democratic measures internally. I think that workers are largely shut out from the campaign decision making that union staffers lead. As organizers, we’re trained to follow the workers’ lead, but I see that teaching only goes so far. While I respect the perspective that trained organizers know the best practices for organizing, I believe that workers know their employers and their industries best and need to be more included in the decisions that affect organizing campaigns.”

— Daniel Luis Zager, Campaign Organizer at SEIU Healthcare-Illinois Indiana Missouri Kansas

The nature of the modern workplace

“Even before the pandemic lengthened average hours worked by those still employed, working an eight-hour workday doesn’t leave much time for all else that needs to get done. Committing to weekly organizing meetings and hours of one-to-one conversations with coworkers—the backbone of any union campaign—is daunting, and for many, untenable. The workers who have the most to gain from a union at their company—those who are over-worked, underpaid, and under-valued—are also the most likely to take on second or third jobs and manage care-taking responsibilities that make it harder to engage in a sustained union campaign. And unfortunately, because of the necessary clandestine nature of organizing efforts, these meetings must take place outside of the workplace, off work time, and through tedious (yet illuminating) conversations.

Those who see issues in their workplace and would be most supportive of a union are often ones who are on their way out of a company. While there’s similarly a contingent of workers who organize because they love their company and want it to be a place they can remain employed long-term, there are always workplace leaders whose persistent grievances push them to simply find a new job instead of committing to a long campaign.

Along those same lines, the ‘career jobs’ of the past are largely lost in the 21^st century. Even those who are satisfied with their jobs and enjoy the work are encouraged to continue gaining skills elsewhere for fear they’ll lose their edge, or miss out on opportunities elsewhere. The decline in long-term commitments to employers poses challenges for union campaigns, whose core philosophies rely on workers digging into their own self interest and organizing around the kind of workplace they desire. If employees already see themselves leaving within two to five years at any given company, putting in the work it takes to build a union may not add up.

We are taught to see ourselves as mobile employees who are poised to climb the ladder in our workplace. Receiving a promotion to a management position is aspirational. And once in that management or supervisory position, employees are no longer eligible for a union. Even if a majority of workers support unions and would like to see one in their own workplace, the distance between seeing themselves as ‘workers’ who would be part of that, and their own endeavors to promote out of the union-eligible designation, can be great.”

— Grace Reckers, northeast lead organizer, Office and Professional Employees International Union

Polarization

“Over 20 years of generational change, [the old demographics of affinity for unions] has faded a lot, and attitudes to unionization break down much more clearly along conventional right to left lines. Younger people and nonwhite people and liberals or Democrats—especially African Americans—are the main supporters, and white, working-class people—especially older ones—have as a group slotted unions in with the rest of right-left issues. The same political polarization that exists in most other issues, basically.

Additional dynamics have been: The youngest generation in the workforce now is the most left-wing and interested in redistribution, but also has the least familiarity with any of the concepts of unions and is not necessarily strong likely union supporters.

There is an increasingly regional background to whether unions are a thing you see operate. Blue states and red states have become much more polarized on labor stuff than the simple Right to Work map indicates. Blue states like New England, the West Coast and the Northeast have become much more proactive in working with unions to unionize more people and get them some stuff, and red or purple states (especially the whole Midwest) have gotten much more hostile to that stuff.

The educational polarization we see on right to left stuff has become a huge factor in whether young, working-class people want to unionize. Industries populated with poor, younger adults who are generally overeducated like (ahem) digital media or higher education, are super ripe slam dunks where you can transform an industry with hot-shop organizing. Ones with mostly poorer, younger adults who are not educated, and are not mostly based in urban areas, like retail and supply chain logistics, have had cold workers that are not responsive enough to union drives to make winning a possibility. (Part of the equation holding them back, of course, is how that generation of big-box retail and its supply chain were built from scratch in such a way that unions could be kept out completely and any rare component that got infected could be easily shut down and dissolved. But there’s an attitudinal difference in the constituencies as well.)

A bright spot exception to this has been fast food where, despite the workforce being young and not educated and rarely staying long at particular jobs, people just hate their job and boss so much they are eager to unionize.

What I find myself wanting to impress upon fellow labor-fan lefties is this: It is truly not just the unfair playing field, or the power of the boss’s fight to scare people, that prevents a majority of a workplace from voting to unionize. In many many workplaces, skepticism and disinterest in doing a collective fight thing is widespread, organic and real among the majority in the middle. Not among social science adjuncts, or journalists, or in large urban service job clusters where almost all the workers are poor and nonwhite. In those types of workplaces, I think any competent organizing program should be able to grow the union. But in places that reflect the educational or political diversity of the country as a whole, I think you’re working with fewer total supporters and that’s why you wind up chasing stuff like card check neutrality.”

— Jim Straub, veteran union organizer

The organizing model

“The shop-by-shop model of unionizing in the United States makes it really hard to scale organizing. It saddles both union organizers and employees who want a union with a ton of strategic, legal and bureaucratic work just to organize a workplace of even five or 10 people. It’s as if any worker who wanted healthcare had to form their own insurance company before signing up. We need to build a new model—like sectoral or multi-employer bargaining—so we can organize entire industries together.

Often those most in need of unions have the least resources and bandwidth to form them. Staff working long hours in dangerous or overwhelming jobs just don’t have the bandwidth to sit on a bunch of evening Zoom calls to learn the ins and outs of determining an appropriate bargaining unit under the National Labor Relations Act (NLRA). The only way to bridge this gap would be if unions had the resources to offer more organizing support to workplaces that need it.

A lot of workers ‘support unions’ but think they are for other workers. ‘White collar’ workers in particular think unions are for workers in other eras, in other industries, at other workplaces. Helping people understand that if they sell their labor then they are a part of the working class and deserve a union is often the first hurdle. More broadly, our country doesn’t teach or celebrate collective action as something people should aspire to participate in. In fact, many people internalize the idea that organizing is inconsistent with the idea of becoming a leader in their field.”

— Daniel Essrow, organizer, Nonprofit Professional Employees Union

No popular labor history

“I find that there is a huge gap between people’s general support for unions and having any idea of how they really work, what it takes to start one, etc. I think there are two primary and related reasons for this. One is that labor processes are complex and arcane to most people. Elections, grievances, Weingarten rights, just cause, right to work—all of these terms are either totally foreign to or completely misunderstood by most non-union workers. I’m currently working on a campaign in a Right to Work state, and many of the workers there thought Right to Work means unions are forbidden! Others tend to think that unions are something for just factory workers and the like, even though the service industry is [a rapidly growing unionized sector]. Relatedly, I think many who supported unions in that poll might have answered differently if asked, ‘Would forming a union improve working conditions at your job?’ I see a lot of folks who generally support unions, but don’t see their field or company as being a place to organize.

The other is that labor history and processes aren’t part of our basic education, nor are they ever explained or even really referenced in the media. I think it’s a big issue that our history lessons don’t generally address the role of labor in increasing living standards for workers globally, nor any of the big laws (NLRA, Taft-Hartley) and what they have done. Why don’t we learn about the NLRA in high school when we study the New Deal or McCarthyism? How come we don’t learn about the Congress of Industrial Organizations and the Industrial Workers of the World, and the gains made by the working class in that era?”

— Steven Morelock, organizer, National Nurses United

Hold my jacket…

“There’s always going to be a gulf between supporting something in the abstract and being willing to risk your ass to achieve it in a real way. This is a dynamic that plays out on the ground during organizing constantly, as you have plenty of people who are willing to support the union, but don’t want to actually be public about it. The analogy I use is someone offering to hold your jacket before you get into a fight. Getting workers to overcome that fear is a key part of organizing, and it maps out to the broader trend. Institutionally, the union movement has tried to narrow this divide through passing laws like the Employee Free Choice Act or the PRO Act that reduce the risk of organizing a union. I don’t think that approach is a viable or realistic option: I severely doubt Congress will pass a version of the PRO Act if by some miracle Biden wins and the Democrats have undivided control of the Congress.”

— Bryan Conlon, union organizer

This blog originally appeared at In These Times on October 7, 2020. Reprinted with permission.

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.

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Black workers are twice as likely to have seen coronavirus-related retaliation by bosses

Posted on June 12, 2020June 12, 2020 by Laura Clawson

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Workers—but especially Black workers—say they are afraid that going to work during the coronavirus pandemic risks their own health or that of a family member, but many fear retaliation if they speak up. A new survey by the National Employment Law Project (NELP) finds that, overall, 56% of people going to work fear the risks, but among Black workers, that number is 73%. And many of people going to work afraid are doing so because they fear retaliation from their boss.

The disparities don’t stop there. “Black workers were both more likely to have concerns (80 percent) and were twice as likely as white workers to have unresolved concerns,” NELP reports, “with more than one in three Black workers (39 percent) reporting either that they had raised concerns to their employer about COVID-19 but were unsatisfied with their employer’s response, or that they did not raise concerns for fear of retaliation. By contrast, 18 percent of white workers were in the same situation.”

The fear of retaliation is very real, and again, especially so for Black workers. In response to the question “Have you or has anyone at your company been punished or fired for raising concerns about the risk of coronavirus spreading at the workplace?” 9% of white workers said “yes” or “maybe.” Just over twice as many Black workers—19%—said the same.

Black workers are faced with these fears at a time when a pandemic is hitting Black people especially hard, and, as NELP points out: “Our results suggest that virus transmission in the workplace may be exacerbated by employer repression and that the disproportionate impact of COVID-19 on Black communities may be related to greater exposure of Black workers to repressive workplace environments.” Racism kills—in more than one way.

NELP identifies concrete policy changes that could help with this situation in the workplace. Workers need not only whistleblower protections but “just cause” job protections so that they don’t get promptly fired for supposedly unrelated reasons that anyone halfway honest can tell are pure pretext. But workers do need strong anti-retaliation policies, such as: “Any adverse employer action taken against an employee within 90 days of that employee raising such concerns should be presumed to be retaliatory.”

Workers should have the right to refuse dangerous work. They should be able to take their employers to court, and employers should face meaningful penalties, not just a slap on the wrist. And, painfully relevant in this moment in which Republicans are trying to force people back to unsafe jobs by threatening their unemployment benefits: “Unemployment insurance rules should make clear that workers who quit or are fired from dangerous jobs, or refuse to work under dangerous conditions, should be eligible for unemployment benefits.”

Such policies won’t fix the racism in people’s hearts, but by giving Black workers protections and rights, they might create somewhat more equal outcomes on the job. Which is worth a lot, especially when the question is: “Can I insist my employer protect my health without losing my job?”

This blog originally appeared at Daily Kos on June 11, 2020. 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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State Department watchdog details political retaliation against ‘disloyal’ staffers

Posted on August 16, 2019 by Nahal Toosi

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Top officials in the State Department bureau that deals with international institutions engaged in “disrespectful and hostile treatment” of staffers, including harassing some over suspicions that they were “disloyal” due to their suspected political views, a federal watchdog says.

At least one top career employee was forced out of her position for inappropriate reasons, while others found themselves stripped of their duties because of their superiors’ political biases, according to the watchdog.

The findings were contained in a report published Thursday by the State Department inspector general’s office. The report, obtained in advance by POLITICO, is the first of two from the inspector general that explores allegations that President Donald Trump’s political appointees retaliated against career State Department employees. The second report is still being drafted.

Thursday’s report singles out the assistant secretary of State for the department’s Bureau of International Organization Affairs, Kevin Moley, as failing to stop the misbehavior despite numerous complaints. It also contains a raft of examples of alleged inappropriate actions by Mari Stull, another senior political appointee in the bureau, who has since left.

Stull and Moley were said to have “frequently berated employees, raised their voices, and generally engaged in unprofessional behavior toward staff,” according to the report.

The majority of the employees the inspector general’s office interviewed “either directly experienced hostile treatment or witnessed such treatment directed at others. In fact, one IO employee told [the Office of the Inspector General] that working with Ms. Stull involved ‘six to eight hostile interactions per day.’”

The report has been eagerly anticipated by Democrats in Congress. On Thursday, Rep. Eliot Engel of New York, the chairman of the House Foreign Affairs Committee, called its findings “offensive” and said that Moley should “resign or be fired.”

Engel added that he and his colleagues “won’t stop until this culture of impunity is ended and everyone responsible faces stiff consequences.”

Moley did not immediately reply to a request for comment, but in a response to the investigation, which the inspector general included in his report, he said the misbehavior attributed to him “does not represent the person I am or have ever been.” He also insisted that many of the alleged incidents had been mischaracterized.

Stull, who served as a senior adviser to Moley, could not immediately be reached for comment. She declined the inspector general’s interview request during the investigation. Because she was no longer a federal employee — she left the State Department in January — she was not required to cooperate.

Stull, who was known to describe herself as “the Vino Vixen” because of her past keeping of a wine blog, was also alleged in past media reports as having tried to keep lists of career government staffers she considered disloyal or loyal to the president.

The report did not appear to directly address that allegation, but it noted that many of the bureau’s staffers said Moley and Stull “made positive or negative comments about employees based on perceived political views.”

For example, several career employees reported that throughout her tenure at the department, Ms. Stull referred to them or other career employees as “‘Obama holdovers,’ ‘traitors,’ or ‘disloyal.’”

Moley, however, insisted to the inspector general’s office that “the only occasion on which he heard Ms. Stull make such remarks was in reference to former political appointees whom she believed were converted to career employees.”

Career government staffers are sworn to serve in government in a nonpartisan fashion, no matter who or which party controls the White House. But many of Trump’s political appointees believe there exists a “deep state” among the career staffers that is determined to thwart the president’s agenda.

The Bureau of International Organization Affairs deals with institutions such as the United Nations. That description alone made it a target of scorn among some top Trump political appointees because of the Republican president’s general disdain for multilateral institutions.

In Stull’s case, it may not have been all about ideology. Investigators wrote that they found evidence that she tried to retaliate against two employees of the bureau who she determined had failed to help her deal with a legal issue in one of her past jobs.

Stull had previously worked at the U.N.’s Food and Agriculture Organization, and had filed an administrative claim regarding her time there. While still at the FAO, she tried to enlist a staffer in the State Department bureau to help with her case. The employee, after talking to his manager, consulted with legal advisers, who told him it was best not to intervene.

The report describes how, after joining the bureau, Stull went out of her way to undermine and complain about that employee and his manager.

“Ms. Stull’s criticism of these employees and her attempts to remove job responsibilities from the employee whose assistance she sought appear likely to have been based on her belief that the individuals did not provide her with sufficient assistance in her private employment dispute,” the report states.

In at least one case, the report says, there’s strong evidence that Moley forced out a high-ranking staffer — a principal deputy assistant secretary with an excellent record and extensive experience — after she raised concerns to him about Stull’s behavior and morale issues in the bureau.

“The circumstances of Assistant Secretary Moley’s removal of the PDAS suggests that he undertook a personnel action based on non-merit factors, namely, her articulation of concerns about Ms. Stull’s conduct,” the report states.

In another case, Moley and Stull are accused of deciding not to fill a bureau role that dealt with human rights because they did not like the leading candidate for the role, possibly because of the person’s relationship with the LGBTQ community. The person’s past work dealing with the U.N. agency that deals with Palestinian refugees was also said to have bothered Stull, who felt the agency was anti-Semitic.

Stull and Moley didn’t appear to understand or be willing to follow established chains of command at the State Department. They would assign duties to staffers without going through supervisors, for instance, or get upset if they weren’t immediately copied on certain papers, even though staffers were following standard procedures on when to route papers to them.

“For example, in April 2018, Ms. Stull asked a mid-level employee, without going through the employee’s supervisors, for information about another nation’s contributions to the UN,” the report states. “Ms. Stull did not believe the data provided was accurate, called the work product ‘garbage,’ and threw it at another employee.”

In one case, Moley is said to have implied, in an email, that the reason he needed to offer clearance on a document was to make sure it reflected the Trump administration’s position.

In another case, multiple witnesses said Stull and Moley had berated a junior employee over a document-routing issue, making her cry. Moley told investigators that he’d never raised his voice at an employee, and that the only time he had heard Stull raise her voice was to him.

Employees alleged that Stull even criticized some of them for clearing certain documents before she’d joined the bureau. “Two employees told OIG that Ms. Stull’s inappropriate conduct had become so pervasive that employees were afraid to put their name on any clearance pages,” the report states.

Moley, meanwhile, “criticized employees when they told him that official travel that he planned in May 2018 did not qualify for first class accommodations under the department’s travel policies and accused them of ‘not fighting hard enough’ to meet his demands,” the report states.

Stull appeared especially fixated on the career staffers’ political views, even though such employees are supposed to serve in a nonpartisan fashion. Some staffers told investigators that “Stull made positive comments about some specific career employees because they reportedly made contributions to Republican candidates.”

Stull also berated an employee because she’d accompanied a delegation of members of the Congressional Black Caucus to the United Nations. The bureau’s staffers routinely accompany such delegations regardless of its composition, the report notes. But Stull “expressed displeasure with her for accompanying the Congressional Black Caucus delegation because it consisted of only Democratic members.” She accused the employee of trying to “thwart” Trump’s agenda, the report says.

The staffer soon found herself stripped of many of her responsibilities; she eventually left the State Department.

Inspector General Steve Linick recommended that the department develop a “corrective action plan” to fix the leadership deficiencies in the bureau. He also recommended that the department consider other moves, including “disciplinary action” against Moley.

The State Department has agreed on both counts.

Linick has been investigating allegations that Trump appointees had targeted career staffers for political retaliation since spring 2018. His other cases include ones involving the alleged actions of aides to former Secretary of State Rex Tillerson. They include one case exposed by POLITICO in which a career staffer of Iranian descent was ousted from a top policy role.

Linick’s investigation grew to cover the international organizations bureau after a June 2018 report in Foreign Policy about Stull, whom career staffers accused of deeply hostile behavior, including compiling loyalty lists.

The report issued on Thursday is based on thousands of emails and other documents, as well as investigators’ interviews with more than 40 people, including Deputy Secretary of State John Sullivan. Secretary of State Mike Pompeo is not listed as having been interviewed.

“Nearly every employee interviewed by OIG raised concerns about the leadership of IO and the treatment of staff,” the report states.

The report, in a footnote, says Stull sent the inspector general’s office a letter in August 2018 that raised concerns “regarding fraud, waste, and abuse, as well as allegations that she had herself experienced retaliation as a result of her efforts to address these concerns.”

Investigators have looked separately into Stull’s claims, but they noted that the probe that led to the soon-to-be-released report did not uncover information to corroborate her allegations.

Many staffers said that they approached Moley with concerns about sinking morale, but that he would minimize it, according to the report. Moley told investigators no employee had ever brought such concerns to him.

“When individuals raised concerns with Ms. Stull about her treatment of employees, she asserted that she was herself the victim of harassment and informed at least one employee that raising such concerns was pointless because the Trump administration ‘has my back,’” the report states.

The report details several attempts by the State Department’s top leaders to get Moley and Stull to adjust their behavior, but it appeared to have limited effect, according to the report.

“Approximately 50 of 300 domestic IO employees have departed IO since Assistant Secretary Moley took over its leadership, and nearly all of the former employees who OIG interviewed stated that poor leadership of the bureau contributed to their decision to depart,” the report states.

This article was originally published by Politico on August 15, 2019. Reprinted with permission.

About the Author: Nahal Toosi is a foreign affairs correspondent at POLITICO. She joined POLITICO from The Associated Press, where she reported from and/or served as an editor in New York, Islamabad, Kabul and London. She was one of the first foreign correspondents to reach Abbottabad, Pakistan, after the killing of Osama bin Laden. Prior to joining the AP, Toosi worked for the Milwaukee Journal Sentinel, where she mostly covered higher education but also managed to report from Iraq during the U.S. invasion in 2003, as well as from Egypt, Thailand and Germany.

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What Are Your Workplace Rights When Entering Rehab?

Posted on October 10, 2018 by Anna Ciulla

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Drug and alcohol rehab have helped millions of Americans successfully recover from addiction and greatly improve their quality of life. But if you’re employed and struggling with substance abuse, a decision to enter rehab can often be complicated by anxious concerns about job security and if/how you should tell your boss. The good news is you have certain workplace rights that can alleviate many of these worries— even with respect to talking with your employer about a decision to pursue rehab.

Common Job-Related Concerns About Going to Rehab

Any full-time employee who has struggled with a serious health condition that requires treatment (and significant time away from work) has asked many of the same questions as employees with an addiction. Some of these questions include:

How will seeking treatment impact my career?
Do I qualify for medical leave?
Can I get fired for taking a leave of absence?
Can my company let me go after learning of my addiction?

What Are Your Workplace Rights?

While there is no cookie-cutter answer to these questions as everyone’s job situation looks different, knowing your workplace rights can help you both answer the above questions and prepare for a conversation with your boss.

A job-protected leave of absence from work – Alcoholism and other substance use disorders can qualify for a job-protected, unpaid leave of absence under the provisions of the Family and Medical Leave Act (FMLA). The FMLA requires that employers with 50 or more employees grant up to 12 weeks of family or medical unpaid leave to employees who have been in their employment for at least 12 months. Consult your employee manual and/or human resources department to verify that an FMLA leave of absence is an option available to you.
Insurance coverage for treatment – If you work full-time, you should have a private insurance plan that covers treatment for alcoholism and other drug addictions (if not in full, then partially).
Paid time off (PTO) – If you have been working for the same employer for a while, you have the right to use PTO in the service of time off for treatment. Depending on how much PTO you have accrued, you can get creative about how you use it to help you through rehab— for example, by scheduling detox and rehab over a long holiday weekend and using PTO to make up for the remainder of that time away from work. Alternatively, if an intensive outpatient program will suffice for your treatment needs, you may be able to spread out small chunks of PTO across several weeks instead of taking off a prolonged period of time.
The right to control what you share with your employer – You are not required to tell your employer you’re going to rehab, although in some cases this may be the best course of action. If you do tell your employer that you need to go to rehab, it is within their right to ask for supporting medical documentation — but the release of any of that private health information will still require your signed consent. In other words, you have a right to limit what, if any, disclosures you make about your medical history. You also have a right to request confidentiality with any medical records you agree to share.

How to Prepare for the Conversation with Your Boss

In addition to getting better familiarized with your workplace rights, here are some other things you can do to prepare for that conversation with your boss:

Get organized ahead of time. Know what the dates of your leave of absence will be, and be prepared to propose a plan for how to cover your job duties while you’re away.
Decide ahead of time whether to share that you’re going to rehab. If you do tell your boss, rehearse an honest but brief explanation. If you’re hoping to avoid mentioning that you’re going to rehab, you’ll still need a prepared response for any questions asked about why you need a leave of absence.
Keep the conversation positive and focus on how taking the time off will help you become a better, more productive employee. Avoid gratuitously mentioning any negative details of your addiction.

Nobody should have to forego rehab for an addiction that is ruining their life purely out of fear they’ll lose their job or be forever stigmatized. These tips can help anyone considering drug or alcohol treatment navigate the challenge of pursuing rehab while protecting their job.

About the Author: Anna Ciulla is the Chief Clinical Officer at Beach House Center for Recovery. Anna has an extensive background in psychotherapy and clinical management, including more than 20 years of experience helping individuals and families affected by addiction and co-occurring disorders find recovery. Learn more about Beach House’s different rehab programs by visiting their website.

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Campaign Alleges Retaliation Against Strikers in Federal Building

Posted on May 31, 2013 by Josh Eidelson

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Organizers tell The Nation that four food court outlets in a federal building initially refused to let employees return to work following a Tuesday strike, but relented following protests by supporters.

The four establishments—Subway, Bassett’s Original Turkey, Quick Pita and Kabuki Sushi—are located in the Ronald Reagan federal building, one of several Washington, DC, workplaces where employees with taxpayer-supported jobs went on strike as part of the Good Jobs Nation campaign, whose backers include the Service Employees International Union. As The Nation reported Tuesday, the strikers are demanding that President Obama take executive action to improve labor standards for workers who are employed by private companies to do jobs backed by public spending. According to organizers, the one-day strike involved hundreds of workers, and forced about half of the Reagan Building’s food court outlets to shut down at some point during the day. (The Reagan Building is owned by the federal government; many of its food outlets are franchisees of restaurant or fast food chains.)

Bassett’s employee Suyapa Moreno told The Nation in Spanish that three of her outlet’s four staff went on strike Tuesday, and that when they showed up to start their shift on Wednesday, “The owner told my co-worker she was fired. So I said, ‘If you’re going to fire her, I’m not coming back to work.’” She said her manager told them that “she didn’t want to see us again.” Moreno said she believes her co-worker was targeted because management saw her as the ringleader who convinced Moreno and a third Bassett’s worker to strike.

Moreno said the workers then waited at the food court until other workers, organizers and community supporters gathered to protest the terminations. According to the Good Jobs Nation campaign, about a hundred total supporters converged in the food court to protest ten total terminations by four outlets. Once there was a big enough group, said Moreno, “We went back to talk to the owner, and she accepted us back.” The Good Jobs Nation campaign told The Nation that managers or owners from Subway, Quick Pita and Kabuki Sushi also agreed to reverse the terminations once confronted by crowds of supporters.

The federal Office of Management and Budget did not respond to a request for comment Thursday afternoon regarding the allegations, or to The Nation’s prior inquiries this week regarding the Good Jobs Nation campaign. An employee who answered the phone at the Reagan Building Bassett’s Original Turkey location early Thursday evening said that no manager was on the property to comment. A call to the building’s Kabuki Sushi location went unanswered. The person who answered the phone at the building’s Subway location said he was too busy to comment; the Subway corporation did not immediately respond to an inquiry.

Reached on the Reagan Building Quick Pita location’s phone line, a person who identified himself as a manager there said that no strikers had been denied the chance to return to work, and charged that the campaign was making workers “victims for a bigger political agenda.” He declined to give his name, and said that he was not authorized to speak for the Quick Pita company or the franchisee’s owner.

The attempted terminations alleged by Good Jobs Nation could be violations of federal labor law. As I’ve noted previously, the law generally prohibits “firing” workers for striking, but often allows “permanently replacing” strikers by filling their positions during the strike and refusing to reinstate them. But strikes that the government finds to be motivated in part by prior labor law violations, as Good Jobs Nation says Tuesday’s was, receive greater legal protection; and striking for only one day may also provide a shield against “permanent replacement.”

However, labor advocates and activists have long charged that the National Labor Relations Board’s slow process and weak penalties do little to discourage companies from firing activists. In order to deter retaliation, organizers of recent fast food strikes have arranged for delegations of supporters, sometimes including local politicians and clergy, to accompany the strikers back to work the next day. As I reported for Salon in November, activists say that an indoor occupation and outdoor picket of a Wendy’s store led management to reverse the termination of one of the participants in New York’s first fast food strike. Organizers say the same approach worked yesterday in Washington.

“Before, when workers were treated badly or fired unjustly, nothing would happen,” said Moreno. “And so the bosses felt like they could keep doing it.” Following the strike and yesterday’s showdown, she said, “Now they treat us with a little more respect, because they’re afraid that if they keep doing what they’re doing, more of this will happen.”

This article was originally printed on The Nation on May 23, 2013. Reprinted with permission.

About the Author: Josh Eidelson is a Nation contributor and was a union organizer for five years. He covers labor for as a contributing writer at Salon and In These Times.

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Oh Great, More CEOs Telling Us We Need to Cut Social Security and Medicare Benefits

Posted on January 18, 2013 by Jackie Tortora

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As if we didn’t already have enough on our plates (having to fend off attacks from the “Fix the Debt” CEOs), now there’s another group of CEOs, the Business Roundtable, telling us we need to “modernize,” a.k.a. cut, Social Security and Medicare benefits by raising the eligibility ages and reducing cost-of-living adjustments (COLAs). How helpful.

R.J. Eskow took on the Business Roundtable in his latest blog, How Extreme Is the Business Roundtable? Check Out Its Attack on the Elderly.

Yesterday, Gary Loveman, CEO of Caesars Entertainment Corp. and head of the Roundtable’s “health and retirement committee,” told Politico that “[a]ny effort to address the country’s fiscal problems has to have as a centerpiece reform of its principal entitlement programs.”

Added Loveman: “None of us [CEOs]—very few of us—are ideologically driven. We’re pragmatists….”

“I am encouraged by how relatively easy these remedies really are,” said Loveman. “… (and) they have a tremendously sanguine effect on the government’s fiscal health.”

That’s true. It is pretty easy. Just kick in a few rich people’s doors, seize their belongings…oh, wait. That’s the other extremist scenario. Loveman’s is the one where people who have paid for Social Security and Medicare coverage throughout their working lives must give some of their benefits up—for him and his friends.

These CEOs are the same people cutting back on pensions and retiree health benefits. Now they want working people to have even more economic insecurity in retirement by cutting the few benefits that keep seniors afloat.

Raising the Social Security retirement age is especially damaging. Not only is it a benefit cut, workers 55 and older have the longest bouts of unemployment. The average time unemployed is nearly a year (51.3 weeks, compared to 34.3 weeks for workers younger than 55).

Eskow points out that 8.9% of American seniors already live in poverty, while 5.4% are on the edge. The average Social Security recipient collects $1,164 per month.

Anyone who claims they can cut those benefits by 3%—and use those meager benefits to end elder poverty—is selling snake oil.

Snake oil indeed. There’s nothing more cynical than calling devastating cuts to vital lifelines “modernization proposals.” Working people know the difference.

This post was originally posted on AFL-CIO on 1/17/2013. Reprinted with Permission.

About the Author: Jackie Tortora is the blog editor and social media manager at the AFL-CIO. Interviewing union musicians was her introduction to the labor movement. Her first job after graduating college was in Syracuse, New York, where she wrote and edited the International Musician, the monthly magazine for the American Federation of Musicians (AFM). Protecting Social Security and Medicare from benefit cuts brought me to Washington, D.C., where she spent two years as a new media coordinator at the National Committee to Preserve Social Security and Medicare. She came to the AFL-CIO in the summer of 2012, just in time to re-elect President Barack Obama. When she’s not tweeting about America’s unions, it’s likely she’s watching Syracuse basketball and football.

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A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Posted on December 21, 2012December 21, 2012 by Bryan Schwartz

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In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements. In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

Last week, in Bradley v. Networkers International, LLC (December 12, 2012) —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker. Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal.

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action.

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.

Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform) lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code.

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable. In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

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