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

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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 21st 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 [email protected]


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

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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

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Nahal ToosiTop 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?

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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

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eidelson_100Organizers 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

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Jackie TortoraAs 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

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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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Warehouse Workers Allege Wage Theft, Demand Pay Stubs

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kari-lydersenEmployees will march into Reliable Staffing office to demand billing records, highlight mistreatment

When Reginald Burnett started working in a warehouse unloading trucks of goods destined for Wal-Mart, he said he was told he’d make at least $10 an hour. But he soon realized that figure hinged on unloading a truck in three hours. Depending on how many things are in a truck and how heavy and unwieldy they are, unloading a truck can take two days.

Burnett, 32, soon found himself working 12-hour days, seven days a week, and taking home only $90-100 a day – less than $9 an hour, not counting copious overtime to which he should have been entitled under the law. He said he wasn’t the only one who realized his Friday paycheck from the agency Reliable Staffing “didn’t add up.”

Burnett is among workers who think they are victims of wage theft by the New Lenox, Ill., staffing agency. Reliable Staffing workers have contacted the group Warehouse Workers for Justice, which is trying to shed light on alleged wage and hour violations, unhealthy working conditions, extensive use of temporary labor and other unsettling aspects of the massive warehouse industry in Chicago’s southwest suburbs.

Today Burnett and other former or current Reliable Staffing workers and their supporters are marching into the company demanding copies of their pay stubs and billing records, to highlight what many workers say is erratic, deceptive or non-existent recordkeeping and transparency by the agencies that hire workers to staff warehouses for major multinational companies like Wal-Mart.

“It was everything that goes to Wal-Mart, from BBQ grills to tables to different types of book folders,” said Burnett. “A lot of it was heavy.”

George Johnson is among the former Reliable Staffing workers who never got straight answers about how much he was being paid. He said he was promised $9.25 an hour, but he said he sometimes got as little as $15 for a full eight-hour day during his three months at the company, paid piecemeal for unloading trucks, splitting pay with one or two other workers unloading the same truck. He said he was also told to report to the warehouse at 7 a.m., but wouldn’t start working until 8:30 a.m. or 9 a.m., without being paid for the waiting time.

“It was all screwed up,” said Johnson, 41, who struggled to support eight kids on the meager wages. “You spent all these hours working, unloading these big trucks, one after another after another. For nothing.”

Warehouse Workers for Justice, a campaign launched several years ago by the United Electrical Radio and Machine Workers of America (UE), last year released the study Bad Jobs in Good Movement: Warehouse Work in Will County that showed:

63 percent of warehouse workers were temps and that majority were earning below the poverty line…and one in four warehouse workers needed public assistance and many workers needed a second job in order to make ends meet.

Both Johnson and Burnett were temporary workers, and Johnson since then worked another temporary warehouse job. Burnett has been collecting unemployment since being laid off after about seven months, when his contract ended.

“When they want that order, they’ll say ‘that truck is hot,’” he said. “There are people waiting on the order, they need to complete it right away to get their money, so they make you work harder. But they don’t share the money with you. They are making big money, I kid you not.”

Warehouse Workers for Justice organizers have been meeting with Illinois state legislators to introduce legislation that would limit the number of temporary jobs in the industry, among other workers’ rights protections.
“People deserve permanent jobs,” said Tory Moore, a WWJ organizer who worked at the same warehouse for six years as a temp.

Burnett said he hopes more workers speak up about wage theft and other problems. He said many of the people working for Reliable Staffing have criminal records, something he thinks the company banked on.

“The job is so God-damned hard, most people they hire have felonies, they know most people won’t hire someone with a felony, so they know he’ll put up with it because he’ll have a hard time doing anything else,” Burnett said.

They are trying to prove to society that they’re capable of handling this kind of thing. Making their own money feels good, especially someone who came from the street, who never had anything in their lifetime. Now they don’t have to look over their shoulder, over their back, look out for the police.

They’re going to hold on to that job as long as they can. The people know they’re being cheated, but they don’t want to speak up because if you speak up, you lose your job.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at [email protected]

This post originally appeared in http://www.inthesetimes.com on February 21, 2011.


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Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

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ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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Turning the Other Cheek: Illegal Retaliation in the Workplace

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Piper HoffmanTurning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.


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