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This Amazon Grocery Runner Has Risked Her Job to Fight for Better Safety Measures

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This arti­cle is part of a series on Ama­zon work­ers pro­duced in part­ner­ship with the Eco­nom­ic Hard­ship Report­ing Project.

Courte­nay Brown spends her day mak­ing gro­cery runs for oth­ers in a foot­ball-field-sized maze of nar­row aisles and refrig­er­at­ed enclaves. At the Ama­zon Fresh unit in a Newark, New Jer­sey ful­fill­ment cen­ter, she works on the out­bound ship dock, help­ing direct the load­ing of trucks and send them off on local deliv­ery routes. Brown says that after near­ly three years at the e-tail empire, her job has been “hell.”

“Imag­ine a real­ly intense work­out, like you just got off of the tread­mill, no cool down, no noth­ing,” she describes one espe­cial­ly gru­el­ing day with a resigned laugh. “That’s how my legs felt.”

Ama­zon Fresh employ­ees often have to comb through huge stocks of var­i­ous chilled and frozen items, which means they need to wear full win­ter clothes to work. The stress and phys­i­cal exhaus­tion of the job tends to wear out many new hires with­in their first few days. “You don’t have that many that have last­ed here,” she says. “It’s so hard.”

With the pan­dem­ic keep­ing con­sumers indoors, Ama­zon gro­cery sales have rough­ly tripled in the sec­ond quar­ter over last year. The num­ber of deliv­ery trucks mov­ing in and out of the Newark ful­fill­ment cen­ter has jumped accordingly.

“Every day I come in, it’s just more and more and more and more,” Brown says. “Lit­er­al­ly every day we break the pre­vi­ous day’s record for the total num­ber of routes that went out for the entire day.”

“Once we get home [from work], the only thing we can do is show­er and dis­in­fect,” she con­tin­ues. “A lot of us [are] too exhaust­ed to eat. We pass out. Then we repeat the process the fol­low­ing day.” Some cowork­ers have end­ed up over­sleep­ing, she adds, and “end up miss­ing the whole day.”

For its part, an Ama­zon spokesper­son wrote in an email that while some jobs at Ama­zon Fresh are phys­i­cal­ly tax­ing, work­ers can choose less stren­u­ous labor.

“Imag­ine your stan­dard nor­mal super­mar­ket aisle, [then] cut that in half,” she observes. “You’re expect­ed to go through that aisle with oth­er peo­ple stock­ing the shelves, or clean­ing… it’s real­ly, real­ly, real­ly cramped.”

Ama­zon boasts mak­ing 150 oper­a­tional changes dur­ing the pan­dem­ic that include dis­trib­ut­ing mil­lions of masks at work­sites, adding thou­sands of jan­i­to­r­i­al staff, and rede­ploy­ing some per­son­nel to help enforce social dis­tanc­ing rules. While it has imple­ment­ed social-dis­tanc­ing rules, and even pro­vides an elec­tron­ic mon­i­tor­ing sys­tem to help keep work­ers sev­er­al feet apart on the ware­house floor, Brown says work spaces are still too crowd­ed: “It’s pret­ty much a show…Where I work on the ship dock, we’re all mashed up together.”

The tense atmos­phere has “def­i­nite­ly changed the rela­tion­ship” among work­ers, she con­tends. Her fel­low employ­ees were friend­lier before, but now “a lot of peo­ple snap at each oth­er a bit more.”

The threat of COVID-19 has only added to the psy­cho­log­i­cal bur­den. “When the pan­dem­ic first start­ed, I remem­ber a lot of us were watch­ing the news,” Brown reflects. “I was talk­ing to man­agers and try­ing to get them [to lis­ten]. ‘Hey, you know, this is going on and we might want to start prepar­ing.’ And they [were] just [act­ing] like it [was] not that big of a deal. Peo­ple are dying, and it’s not that big of a deal?”

Although Ama­zon even­tu­al­ly enact­ed safe­ty mea­sures, Brown says she and her col­leagues spent “months com­plain­ing” about what they saw as sub­stan­dard pro­tec­tions, includ­ing inad­e­quate safe­ty gear and social-dis­tanc­ing mea­sures. An Ama­zon spokesper­son main­tains the com­pa­ny moved to pro­tect its work­ers at the out­set of the pan­dem­ic, and that masks were dis­trib­uted in ear­ly April.

But Brown bris­tles at the com­pa­ny’s claims, say­ing the response was slow and devoid of trans­paren­cy. Work­ers were espe­cial­ly upset, she recalls, when they received news of a COVID-19 infec­tion at their site two weeks after the indi­vid­ual had report­ed­ly tak­en ill.

Even­tu­al­ly, Brown con­nect­ed with oth­er Ama­zon orga­niz­ers through an online peti­tion cir­cu­lat­ed by the advo­ca­cy net­work Unit­ed for Respect. Ear­li­er this year, she began work­ing with the Athena coali­tion to pres­sure Ama­zon to rein­state some work­er pro­tec­tions that were insti­tut­ed ear­li­er on in the pan­dem­ic and then dis­con­tin­ued. The work­ers are demand­ing the restora­tion of “haz­ard pay” for ful­fill­ment-cen­ter work­ers, as well as unlim­it­ed unpaid leave for those who opt to stay home to pro­tect their health. (Over the objec­tions of its work­force, Ama­zon end­ed unlim­it­ed unpaid leave and scrapped its $2 hourly “incen­tive” bonus in May.) The coali­tion is also push­ing for more trans­paren­cy in the report­ing of new cas­es, so man­age­ment will “actu­al­ly tell us the truth about the num­bers of peo­ple that are sick.”

In April, Brown par­tic­i­pat­ed in a media con­fer­ence call with Sen. Cory Book­er, D-N.J., to pro­mote an Essen­tial Work­ers Bill of Rights that would beef up health and safe­ty pro­tec­tions, pro­vide child­care sup­port and uni­ver­sal paid leave poli­cies, and pro­tect whistle­blow­ers. More recent­ly, she was fea­tured in a New York Times video about the work­ing con­di­tions at Ama­zon. She claims her pub­lic cam­paign­ing has drawn the ire of management.

“I’m harassed every day, all day,” she says. One safe­ty super­vi­sor in par­tic­u­lar is “just watch­ing” to see if she vio­lates the company’s social-dis­tanc­ing rules.

Brown recalls a recent inci­dent in which she was speak­ing casu­al­ly with some co-work­ers about safe­ty issues when the super­vi­sor inter­vened, shout­ing at them to keep six feet apart. Although they were all main­tain­ing their dis­tance, she says, “he [yelled], ‘you’re in a group!’” They answered, “Yeah, but we’re all six feet apart from each oth­er with our masks on.” But she says the man­ag­er nonethe­less threat­ened to write them up and warned they could be terminated.

Ama­zon has stat­ed that it oppos­es retal­i­a­tion against employ­ees who voice their con­cerns about work­ing con­di­tions. But like oth­er Ama­zon orga­niz­ers, Brown believes her treat­ment reflects a broad­er cam­paign aimed at dis­suad­ing employ­ees from organizing.

“What they’ll do is they’ll find an indi­vid­ual, and they’ll kind of make an exam­ple of you. And that scares every­body else,” she says. Her obser­va­tions are affirmed by a recent Open Mar­kets Insti­tute report that finds that Ama­zon has used sophis­ti­cat­ed work­place sur­veil­lance tac­tics to intim­i­date and sup­press work­ers who seek to union­ize or chal­lenge the company’s labor practices.

Brown, mean­while, is ded­i­cat­ed to improv­ing her work­place. This is not the first time she has faced hos­tile cir­cum­stances, both inside the Ama­zon ware­house and out. For a stretch in 2018, she had to live in a motel with her sis­ter, who also works at Ama­zon, because the two could not secure a rental apart­ment with the wages they were earn­ing deliv­er­ing food for the cor­po­rate behe­moth. “We were lit­er­al­ly starv­ing,” she says. “We weren’t mak­ing enough to be able to pay for the room, eat, and make it to and from work.”

Ama­zon has denied charges of employ­ee sur­veil­lance, dis­miss­ing the Open Mar­kets Insti­tute as “a peren­ni­al crit­ic that will­ful­ly ignores” the com­pa­ny’s record of cre­at­ing jobs with “indus­try lead­ing wages and ben­e­fits.” The com­pa­ny claims that it does eval­u­ate work­ers’ per­for­mance “over a long peri­od of time,” and pro­vides under-per­form­ing work­ers with “ded­i­cat­ed coach­ing to help them improve.”

Giv­en the dan­gers of speak­ing out, Brown some­times won­ders if she might end up home­less again. But she’s less fear­ful about los­ing her job than she is about the health haz­ards she faces every day as she fights to hold her employ­er account­able. “It’s real­ly ter­ri­fy­ing,” she says, “but if I don’t do this, then I could poten­tial­ly get sick and die.”

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

About the Author: Michelle Chen is a con­tribut­ing writer at In These Times and The Nation, a con­tribut­ing edi­tor at Dis­sent and a co-pro­duc­er of the “Bela­bored” pod­cast. She stud­ies his­to­ry at the CUNY Grad­u­ate Cen­ter. She tweets at @meeshellchen.

About the Author: Molly Crabapple is an artist and writer in New York, and is the author of, most recent­ly, Draw­ing Blood and Broth­ers of the Gun, (with Mar­wan Hisham). Her art is in the per­ma­nent col­lec­tions of the Muse­um of Mod­ern Art. Her ani­mat­ed short, A Mes­sage from the Future with Alexan­dria Oca­sio-Cortez, has been nom­i­nat­ed for a 2020 Emmy for Out­stand­ing News Analy­sis: Edi­to­r­i­al and Opinion.


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Employers Are Spying on Remote Workers in Their Homes

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The future of work is here, ush­ered in by a glob­al pan­dem­ic. But is it turn­ing employ­ment into a Work­ers’ Par­adise of work­ing at home? Or more of a Big Broth­er panopticon?

Dis­turb­ing increas­es in use of dig­i­tal sur­veil­lance tech­nolo­gies by employ­ers to mon­i­tor their remote work­ers is rais­ing alarm bells. With the num­ber of remote work­ers surg­ing as a result of the pan­dem­ic—42% of U.S. work­ers are now doing their jobs from their kitchens, liv­ing rooms and home offices—a num­ber of employ­ers have begun requir­ing their work­ers to down­load spy­ing soft­ware to their lap­tops and smart­phones. The goal is for busi­ness­es to mon­i­tor what their remote employ­ees do all day, and to track job per­for­mance and pro­duc­tiv­i­ty and reduce so-called “cyber-slack­ing.”

Busi­ness soft­ware prod­ucts from Hub­staff, which tracks a worker’s mouse move­ments, key­board strokes, web­pages vis­it­ed, email, file trans­fers and appli­ca­tions used, are surg­ing in sales. So are sales for TSheets, which work­ers down­load to their smart­phones so that employ­ers can track their loca­tion. Anoth­er prod­uct, called Time Doc­tor, down­loads videos of employ­ees’ screens and uses a com­put­er’s web­cam, which can take a pic­ture of the employ­ee every 10 min­utes. As one work­er who was sub­ject­ed to Time Doc­tor told NPR, “If you’re idle for a few min­utes, if you go to the bath­room or to the kitchen, a pop-up comes up and says, ‘You have 60 sec­onds to start work­ing again or we’re going to pause your time.’” 

Anoth­er sys­tem, Inter­Guard, can be secret­ly installed on work­ers’ com­put­ers. As the Wash­ing­ton Post notes, it “cre­ates a minute-by-minute time­line of every app and web­site they view, cat­e­go­riz­ing each as ‘pro­duc­tive’ or ‘unpro­duc­tive’ and rank­ing work­ers by their ‘pro­duc­tiv­i­ty score.’” Oth­er employ­ers are using a low­er tech approach, requir­ing work­ers to stay on a tele­con­fer­ence like Zoom all day so they can be con­tin­u­al­ly watched.

Since the Covid-19 out­break, one sur­veil­lance com­pa­ny, Aware­ness Tech­nolo­gies, Inc., says it has seen its sales triple. Exec­u­tives at Hub­staff and Tera­mind also say demand for their com­pa­nies’ mon­i­tor­ing prod­ucts have tripled. One web­site show­ing “Employ­ee Mon­i­tor­ing Soft­ware in the USA” lists near­ly 70 com­pa­nies with prod­ucts for sale.

Out­dat­ed laws keep it legal

Online sur­veil­lance of employ­ees may seem inva­sive and creepy, but it is a legal prac­tice in the Unit­ed States. Indi­vid­ual state laws vary over whether com­pa­nies must inform work­ers that they’re using track­ing soft­ware, but in real­i­ty “when you’re on your office com­put­er, you have no pri­va­cy at all,” Lewis Malt­by, pres­i­dent of the Nation­al Workrights Insti­tute, told CNBC. “Any­thing and every­thing you do is prob­a­bly mon­i­tored by your boss.”

Cur­rent laws are vast­ly out­dat­ed, as they are based on the Elec­tron­ic Com­mu­ni­ca­tions Pri­va­cy Act of 1986, when the pri­ma­ry form of elec­tron­ic com­mu­ni­ca­tion was the tele­phone. That was a dis­tant time when desk­top com­put­ers were first becom­ing pop­u­lar, and smart phones were not yet a glint in Steve Jobs’ eye.

And now, in response to the coro­n­avirus out­break, com­pa­nies such as Price­wa­ter­house­C­oop­ers (PwC) and Sales­force have devel­oped intru­sive appli­ca­tions that enable com­pa­nies to con­tin­u­ous­ly track the health sta­tus of their employ­ees. Often they include a sys­tem for track­ing con­tacts between employ­ees with­in an office, and a mobile app for col­lect­ing infor­ma­tion about their health sta­tus. A num­ber of large U.S. employ­ers, includ­ing Ama­zonWal­mart, Home Depot and Star­bucks, are tak­ing the tem­per­a­tures of their employ­ees before they are allowed to work. Cer­tain­ly, employ­ers have a legit­i­mate need to col­lect the nec­es­sary data to safe­guard their work­places, espe­cial­ly in response to a pan­dem­ic. But what is the appro­pri­ate lev­el of “health intru­sion”? How vol­un­tary is the par­tic­i­pa­tion of work­ers, and who gets to decide? 

The real­i­ty of this con­stant Big Broth­er dig­i­tal spy­ing in people’s homes is that dozens of remote work­ers are start­ing to com­plain that they feel burned out by this pres­sure. A recent Fish­bowl sur­vey of major com­pa­nies’ employ­ees found that three-quar­ters of those polled were opposed to using an app or device that allows their com­pa­ny to trace their con­tacts with col­leagues. Yet many fear they will be brand­ed as trou­ble­mak­ers or lose their jobs if they speak out. And since remote work­ers hard­ly see each oth­er—and increas­ing­ly may not even know many of their cowork­ers—these fac­tors will make labor orga­niz­ing and col­lec­tive work­er empow­er­ment increas­ing­ly challenging.

U.S. labor unions have been slow to advo­cate for updat­ing these out­dat­ed laws. One union, the Unit­ed Elec­tri­cal, Radio, and Machine Work­ers of Amer­i­ca, has been work­ing to blunt the worst of the abus­es. Labor-friend­ly media have been miss­ing this sto­ry as well. Not only should unions advo­cate to update the laws and lim­it dig­i­tal spy­ing, but why not also demand that home-based work­ers be com­pen­sat­ed by employ­ers for use of their house, util­i­ties and the inter­net? And that the employ­er remains respon­si­ble to pro­vide equip­ment and a safe work­place, even in the home?

Remote work­force growth—the new normal?

As the num­ber of remote work­ers ris­es, con­cerns are grow­ing among labor advo­cates that this is quick­ly becom­ing the “new nor­mal.” One sur­vey found that 74% of com­pa­nies intend to keep some pro­por­tion of their work­force on a per­ma­nent remote sta­tus, with near­ly a quar­ter of respon­dents say­ing they will move at least 20% of their on-site employ­ees to per­ma­nent remote sta­tus. Google, whose par­ent com­pa­ny is Alpha­bet, recent­ly announced it will keep its 200,000 full-time and con­tract employ­ees home until at least July 2021, and Mark Zucker­berg pre­dicts half of Face­book employ­ees will work from home over the next decade. HUB Inter­na­tion­al, a glob­al insur­ance bro­ker­age, has shift­ed 90% of its 12,000-plus employ­ees to remote sta­tus. Teleper­for­mance, the world’s largest call-cen­ter com­pa­ny, esti­mates that near­ly 155,000 of its employ­ees—almost half its glob­al work­force—will not return to a phys­i­cal work­site. A sur­vey of firms bythe Sur­vey of Busi­ness Uncer­tain­ty found that the share of work­ing days spent at home is expect­ed to increase four­fold from a pre-Covid-19 lev­el of 5 per­cent to 20%. Post-pan­dem­ic, many employ­ees will work from home one to three days a week, and come into the office the rest of the time.

But not all at-home work­ers are cre­at­ed equal. Stan­ford econ­o­mist Nicholas Bloom says “This is gen­er­at­ing a time bomb for inequal­i­ty.” More edu­cat­ed, high­er-earn­ing employ­ees are far more like­ly to work from home, con­tin­u­ing to get paid and advance their careers. But many oth­ers are unable to work from home, often because they lack suit­able space or fast, afford­able inter­net con­nec­tions, and they are being left behind. “They face bleak prospects if their skills and work expe­ri­ence erode dur­ing an extend­ed shut­down and beyond,” says Bloom.

The future of work has become more uncer­tain than ever. In this “brave new world,” labor unions and advo­cates must ensure that the pan­dem­ic is not mis­used by busi­ness­es as an excuse to wors­en con­di­tions for employ­ees who work out of the office. It is easy to imag­ine how the lines between ‘remote’ work and ‘plat­form’ work could blur, lead­ing to more ‘Uber­iza­tion’ as work devolves into ‘inde­pen­dent’ con­tracts, bogus self-employ­ment and ‘pay-by-project’ arrange­ments that can be eas­i­ly out­sourced to remote (and low­er cost) destinations.

Work­er advo­cates must push for a strong and mod­ern legal data pro­tec­tion frame­work. And that should include an effec­tive enforce­ment sys­tem against pri­va­cy abuse that cre­ates a dis­in­cen­tive against ille­gal spy­ing behav­ior. Remote work should not become a down­ward slide toward a Big Broth­er panop­ti­con that pen­e­trates into soci­ety ever more deeply, includ­ing into our homes.

This blog originally appeared at In These Times on September 23, 2020. Reprinted with permission.

About the Author: Steven Hill is the author of Raw Deal: How the “Uber Econ­o­my” and Run­away Cap­i­tal­ism Are Screw­ing Amer­i­can Work­ers and The Start­up Illu­sion: How the Inter­net Econ­o­my Threat­ens Our Wel­fare.


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As New Jobs Return, Employers Slash Wages

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New data has shown that while a majority of jobs eliminated during the downturn were in what we describe as the middle range of wages, the great majority of jobs added as the economy improves were low paying jobs, reported Katherine Rampell in the business section of the New York Times on Friday, August 31, 2012. This was documented in a study done by the National Employment Law Project.
 The study by Annette Bernhardt examined 366 occupations followed by the Labor Department. Bernhardt separated them into three equal groups by wages, with each representing a third of American employment in 2008.
     The middle third consisted of jobs like construction, manufacturing, and information. These jobs paid median hourly wages of $13.84 to $21.13. Over 60% of these jobs were lost during the recession. When the middle third jobs returned, they represented only 22% of total employment growth.
      In the category of higher wage occupations, those that had a median wage of $21.14 to $54.55 reflected only 19% of job losses. However, when growth in the economy began, only 20% of new jobs were the result of the upturn. This was only a 1% increase which doesn’t even cover new entrants into the labor force.
     Low wage jobs with median hourly wages of $7.69 to $13.83 accounted for 21% of job losses during the downturn. The startling fact is that low wage jobs now constitute 58% of all job growth. The jobs with the fastest growth were retail sales at a median wage of $10.97 per hour. At this salary, workers would be eligible for food stamps.
      Each category has grown by more than 300,000 workers since June 2009. Many of these new paying jobs were taken by recent high school and college graduates who were previously unemployed. Others were taken by older workers who formerly had jobs that paid much more, who were desperate.
     Mid-wage and middle class jobs have been disappearing at a rapid rate. Some of this is due to automation, but the bulk of the job loss is the result of employers taking millions of jobs overseas to low wage paying countries.
     At the same time, corporations and their Republican robots are passing so called “Right to Work” legislation which further erodes the wage structure. The labor movement, the trade unions, and their progressive allies are the only institutions that can bring back middle class livable wages.
This post was originally posted on Union Review on December 19, 2012. Reprinted with Permission.
 
About the Author: Seymour Slavin is an Independent Nonprofit Organization Management Professional at Union Review.

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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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Corporate Profits Hit Record High While Worker Wages Hit Record Low

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A constant conservative charge against President Obama is that he is inherently anti-business. However, businesses keep defying the storyline by making larger and larger profits, rebounding nicely out of the Great Recession.

In the third quarter of this year, “corporate earnings were $1.75 trillion, up 18.6% from a year ago.” Corporations are currently making more as a percentage of the economy than they ever have since such records were kept. But at the same time, wages as a percentage of the economy are at an all-time low, as this chart shows. (The red line is corporate profits; the blue line is private sector wages.):

 

Corporations made a record $824 billion in profits last year as well, while the stock market has had one of its best performances since 1900 while Obama has been in office.

Meanwhile, workers are getting the short end of the stick. As CNN Money explained, “a separate government reading shows that total wages have now fallen to a record low of 43.5% of GDP. Until 1975, wages almost always accounted for at least half of GDP, and had been as high as 49% as recently as early 2001.”

This post was originally posted on Think Progress on December 3, 2012. Reprinted with Permission.

About the Author: Pat Garofalo is the Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.


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Do the New NLRB Rules Really Help Workers Organize?

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Mike ElkA series of rules have been proposed recently by the National Labor Relations Board that improve the rights of workers on the job. The rule changes by the NLRB have been hailed by organized labor as great triumphs that will promote the right to organize. But some question whether the regulations go far enough.

In December, the NLRB ruled that employers must start posting the rights of workers to join a union. This decision was met by many congratulatory press releases celebrating a great victory for unions. AFL-CIO President Richard Trumka hailed these rules saying:

Every working person in America deserves to know his or her rights. Just as employers are currently required to post information regarding the laws that protect workers’ health and safety, their rights to a minimum wage and to a workplace free from discrimination, this rule ensures that workers’ rights are effectively communicated in the workplace. It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.

In November, the NLRB ruled that expressing one’s negative opinion of a boss using social media such as Facebook or Twitter was free speech protected by the Constitution. This was hailed as a major victory for workers trying to organize because it gave broader protection to workers criticizing their companies. In October, the NLRB issued a decision saying that employers now must electronically inform workers through email of their union busting violations. Previously companies were forced to only post a notice on a bulletin board.

Each time these rulings are issued by the NLRB, they are lauded as signs of great progress by organized labor. However while the NLRB has expanded the rights of workers in theory, it still has not changed the penalties for illegal union busting. Requiring an employee to send out an e-mail as opposed to posting a paper notice or having to post the rights of a worker to join a union does not change an employer’s behavior of intimidation.

Employers still face no serious financial penalties or lose government contracts for illegally firing a worker. Nor has the NLRB shortened the election period to seven days—as many in labor hoped—in order to prevent the boss from running effective intimidation campaigns for months. So why do so many in organized labors celebrate these rulings with such great hope?

What these ruling represent is that the NLRB has shown the willingness to change the rules ever so slightly in order to protect the rights of workers. The NLRB has shown it has the power and willingness to do it. However, until the NLRB is willing to issue tough penalties and improve voting conditions for workers, these expanded workers’ rights will help workers little as they exercise their right to organize.

This article was originally published on Working In These Times.

About the Author: Mike Elk is a third-generation union organizer who has worked for the United Electrical, Radio, and Machine Workers, the Campaign for America’s Future, and the Obama-Biden campaign. He has appeared as a commentator on CNN, Fox News, and NPR, and writes frequently for In These Times, Huffington Post, Alternet, and Truthout.


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Crash, My Life This Week

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Image: Bob RosnerThis week I was in two accidents in 48 hours. My car got hit in the rear and in the front and probably won’t emerge from the shop for days. And it didn’t ruin my week. Let me tell you why and what this has to do with the workplace.

On Monday I was driving to pick up my daughter at school. Stopped at a traffic light suddenly a woman rammed into the back of my car. I collected my thoughts for a moment and then got out of my car. Greeting me was the woman who hit me saying, “I’m so sorry. It was all my fault.”

All I needed was one more bit of information to hit the accident trifecta, to find out that she was insured.

Yes, yes and yes.

My hope for humanity was revived when the woman who hit my car did something that hardly anyone does anymore, accept responsibility.

A scant 48 hours later I was driving to pick up my kid at school. Suddenly out of nowhere a car flashed across the intersection and I t-boned it. Badly damaged both the front and back passenger side doors. And my bumper was only hanging on by a thread.

I sat in my car in total disbelief for a minute. Then I was greeted by a woman saying, “I’m sorry. It was all my fault.”

But this time it was a bit more complicated. She gave me her phone number and insurance information at the scene but it wasn’t the correct phone number. I sweated for an hour and then decided to call her insurance company. They told me that the policy number she did give me was correct and that I could file the report.

A friend told me that he saw a study that said that 90% of people change their story after an accident. But thankfully I ran into the 10% of people who tell the truth and accept responsibility.

The trouble is that I think far more people are like these women than we realize. People mostly can be trusted to do the right thing, but that doesn’t make for great TV or radio or rap songs or novels. But that doesn’t make it any less true.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]


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Why Today’s Workplace Readers Should Think About Attending The ROI of Great Workplaces Conference

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You found this blog, or return to it, because you’re interested in workplace rights and employers that follow the law to a tee, right?  Well, you’ll find the latest, best information on both and meet some dynamic business contacts to boot at Winning Workplaces’ 2009 annual event that will be held in Chicago on October 1-2.  We’re calling it the ROI of Great Workplaces Conference.

Click here to:

  • View event summary
  • Add event to your calendar
  • Watch a short highlights reel from our 2008 conference
  • View fees and agenda (note that the agenda is still coming together)
  • Learn about the location
  • Book your room at the event hotel at the special Winning Workplaces rate

Besides the short video of last year’s conference at the above link, you can get a sense of what attendees experienced by checking out my photo recaps on our blog here and here.

Here’s more incentive to attend: Be one of the first 100 people to register and get $100 off your registration.  Just click here and enter coupon code FRSTHUND when prompted.

Some of my favorite moments at this event happen when I meet new business people in between sessions.  This was the case last year when I was finally able to meet and sit down with your host on this blog, Paula Brantner.  I hope I’ll be able to do the same with you this year.

Register now for this event.

About the Author: Mark Harbeke ensures that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University. Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.


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Using Company Email to Communicate with Your Employment Lawyer

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The sanctity of the attorney-client relationship is a fundamental pillar of our legal system, recognized throughout the public and private sector. “[T]he attorney-client privilege is the oldest privilege recognized for confidential communications at common law and is intended ‘to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” Grimes v. Dept. of Navy, 99 M.S.P.R. 7, 11 (2005) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). “The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice,…as well as an attorney’s advice in response to such disclosures.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (quotation omitted), cert. denied, 520 U.S. 1167, 117 S.Ct. 1429, 137 L.Ed.2d 538 (1997). The attorney-client privilege falls into the class of absolute privileges. Swidler & Berlin v. United States, 524 U.S. 399, 409, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). If you are engaged in an attorney-client relationship with counsel at the time of particular communications, then an absolute privilege should apply to those communications.

However, what if you learn that your employer, either intentionally or inadvertently, has come into possession of attorney-client emails sent through a work email account? First, if you learn that attorney-client communications or attorney work product documents are in the employer’s possession, you should immediately seek return of such communications. You should advise the employer that you consider the documents to be attorney-client privileged communications (and possibly attorney work product privileged as well). You should be clear that it is not your intention to waive any attorney-client, work product, or other privileges that apply to these documents.
You can also remind your employer that, under Fed.R.Civ.P. 26(b)(5)(B), after being notified of an inadvertent disclosure of privileged information, “a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.” “Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential.” La Jolla Cove Motel and Hotel Apartments, Inc., v. Superior Court, 121 Cal.App.4th 773, 791 (2004) (citing Cal.Evid.Code, § 917).
Generally, you can put your employer on notice that the ethical canons of the legal profession preclude the employer from searching intentionally to discover privileged information in an employee’s email account, knowing that such information is subject to an asserted or very likely attorney-client or work-product privilege. Such would include all communications between an employee and his/her employment lawyer. The American Bar Association’s Standing Committee on Ethics and Professional Responsibility, “Formal Opinion 92-368: Inadvertent Disclosure of Confidential Materials (1992),” makes clear that counsel should not seek to review information it has reason to believe was inadvertently disclosed.
If the employer is trying to hold against you something you discussed with your employment attorney on a company email system, you should also remind the employer that privileged communications do not lose their privileged character because they are communicated electronically. See California’s Evidence Code § 917(b). See also, e.g., 18 U.S.C. § 2517(4) (wiretap law recognizing that electronic communications may have privileged character); Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 514 (S.D. Cal. 2003) (applying attorney-client privilege to email communications). However, attorney-client privilege can be waived, and if the privilege is waived, then those communications may be fair game for employers to use.
The “sacred” attorney-client privilege can be waived “implicitly” only under rare, defined circumstances (see Bittaker v. Woodford, 331 F.3d 715, 718-721 (9th Cir. 2003)), such as (for example) in a legal malpractice action, where the attorney-client communications are directly placed at issue in the litigation. On the other hand, an “express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public.” Id. at 719. By communicating to the employer seeking return of disclosed information immediately after learning of its disclosure, you convey a strong desire to maintain the privilege. On the other hand, if you forward your attorney’s email to someone else not involved in the attorney-client relationship, you have likely implicitly waived the privilege as to that particular communication.
It is the present policy of Bryan Schwartz Law to communicate as little as possible, or not at all, with clients on their work email, because, at the very least, it creates a headache in subsequent litigation when an employer inadvertently discovers attorney-client communications and tries to use them in the case. However, I believe strongly that privileges between employees and their attorneys – not to mention, prisoners emailing their attorneys, and other attorney-client email relationships – would be of little value if, by disclaimer, “Big Brother” could simply deem all communications via particular media as non-confidential, such that privilege would be waived inherently and broadly. Many employees in the workforce do not have private email apart from their work email accounts, and thus would not be able to email their attorneys at all. Perhaps all work email (not only that of the employer against whom a party is litigating) – by virtue of the fact that a non-attorney administrator can access it – would be unprivileged, including all emails sent by attorneys to clients from the attorneys’ own law firms’ email accounts. By this rule, all of the emails between the employer and the employer’s own attorneys regarding your case would also be unprivileged, because privilege was waived when they utilized the company’s email system. Perhaps all email sent via Gmail, Yahoo, Comcast, SBC, and Hotmail would also be unprivileged, since there are no doubt skilled individuals who can access our emails sent via these services as well.[1]
In sum, while the danger of inadvertent disclosure during discovery makes attorney-client communications by work email not a “best practice,” it does not mean that all attorneys and all clients who communicate via a work email have waived their sacred rights. In practice, many or most employers tolerate usage of work email for some personal uses. If the employer demonstrated a widespread enforcement of a “no personal use” policy, such that you and individuals known to you were being routinely counseled and disciplined for using their email to send greetings to spouses or friends, or, if the employer’s email system generally prevented outside emails all together, then perhaps you would be on clear notice that your emails were being monitored and would have a reasonable belief they were non-confidential. However, just because we are aware in the abstract that someone (like a forensic software examiner or technology specialist) could figure out how to probe our email accounts, is not the same as knowing that each of our emails is being actively monitored. By way of contrast, when one calls a credit card company, the phone system indicates on every call that you are “being monitored and recorded for quality and training purposes” – which might defeat an expectation of privacy/confidentiality. See also Cal. Evid. Code. §917(b). In many cases, there is no indication that employees know that each of their emails are being individually monitored. An employee of an employer with hundreds or thousands of employees worldwide need not assume that every communication he/she has with anyone about anything is being read by individuals who are not the intended recipients of the communication.[2]
Even if you could ever have reasonably expected the employer to learn that you did exchange some emails with your attorney while at work (i.e., the identities of your addressees), you would have no reason to believe that the employer at the direction of legal counsel would overtly violate legal ethical obligations by seeking to review the substance of communications known to be between a client and his/her counsel.
Your communications with counsel via work email arguably maintain their privileged character, and should not be employed by the employer against you.
[1] It is no doubt possible for technologically-gifted individuals to listen to attorney-client communications via telephone, too, and yet courts have found that individuals have a reasonable expectation of privacy in their phone conversations. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 904 (9th Cir. 2008) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”). Before Katz, courts had found that communications by United States mail could also be entitled to confidentiality/an expectation of privacy. Quon, 529 F.3d at 905 (citing United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Email (and text message) plays a role today like the phone booth and the U.S. mail have played in the past, and the content of messages transmitted via these media can have a reasonable expectation of privacy and confidentiality. Quon, 529 F.3d at 905-906 (citing United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)).
[2] Without having statistical or expert data on point, my experience suggests that virtually every client, co-worker, and friend whose work email permits sending to and receiving from outside parties does have personal communications from time to time on this email system, which he or she does not expect to be read by non-addressees at the employer.
Disclaimer: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.

Bryan Schwartz: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

This article originally appeared on the Bryan Schwartz Law Blog on april 22, 2009. It is reprinted here with permission from the author.


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Surviving the Four Kinds of People at Work

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Everything that I need to know about people at work I learned in Online Dating. Amidst the dull dates, intrigue and ships passing in the night, I’ve learned stuff that you can take to work. Trust me, knowing about the four groups of people will save you a lot of pain at work.

Group One. This is the smallest group. I call them the “Whole Truth and Nothing Buts” group. These people are scrupulously honest. I’m not sure they could lie, even if they wanted to. You always know where these people are coming from.

Group Two. This group is slightly larger than the first group, but still a relatively small slice of life. These are the pathological liars. They lie even when it doesn’t serve a purpose. One HR manager commented that the good part about a pathological liar is that they lie so indiscriminately, you can usually catch them by just checking little details, like if the dates they worked at a certain job are accurate. Lucky for all of us, this group is relatively small.

Group Three. This group is much bigger than groups one and two, combined. I first was introduced to this group when a woman who was six feet tall thought that was too tall to list in her online profile. So she put herself down at 5’10”. Unfortunately the great guy she found at 5’10” was really only 5’8”. Needless to say, they didn’t exactly see eye to eye. I call this group the “Rounding Errors.” It’s not really a lie, they just rounded things a bit.

Group Four. Unfortunately this seems to be the biggest group out there. To understand this group, I need to refer to one of my favorite Seinfeld episodes. It was one where Jerry needed to pass a lie detector test. So he went to the best liar he knew, his friend George. George said, “Jerry, there is one thing you must remember. It’s not a lie, if you believe it to be the truth.” I call this group the “Self-Deceivers.”

Think about the people you’ve come across at work. Chances are that you’ll find a lot of examples of “The Whole Truth and Nothing But…,” “Pathological Liars,” “Rounding Errors” and “Self-Deceivers.” Hopefully this will help you to better navigate your workday and to be a bit more charitable to groups three and four, because their mistruths probably aren’t intentional.

One final thought. These four groups also apply to you. Yes, it’s time for a small bit of humble pie. Talk to friends and colleagues to see which of the four groups you fit into at work. Chances are good that you may be surprised by where they place you. As hard as this information is to hear, I’d much rather learn it myself from friends that I trust.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected]


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