• print
  • decrease text sizeincrease text size
    text

Workplace Retaliation: What to Know and Examples

Share this post

Alana Redmond

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

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

Protected activities that employees may engage in include:

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

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

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

Demotion or Termination

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

Reduced Hours or Pay

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

Opportunity Exclusion

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

Creating a Hostile Work Environment

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

Disciplinary Actions

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

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

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

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

This blog was contributed to Workplace Fairness.

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


Share this post

How To Be an Ally in the Workplace

Share this post

Dakota Murphey

There can be no doubt that we are starting to get better at facing up to uncomfortable or awkward issues in the workplace.

The rise of the #MeToo and Black Lives Matter movements have taken topics that were once taboo and pushed them into the mainstream. In doing so, they have shown us how necessary it is to be allies to others at work. 

Promoting inclusivity and diversity in the workplace is a benefit not only to staff, but also the whole organization, as it can push forward new ideas and create a competitive edge for the company over competitors.

Ideas around this subject need to target everyone from the top level down the company, while understanding disability and the language of discrimination being key. Implementing diversity and inclusivity training can support everyone work at to be a better ally in the workplace.

Indeed, even if you feel like you are already doing a lot to be an ally, it is always a good idea to continue learning and re-learning these important lessons. 

In this article, we examine how anyone can be a better ally to underrepresented communities in the workplace. 

Educate yourself

The most crucial step to being an ally in the workplace is actually educating yourself. Learning – and in some cases unlearning – behaviors and mindsets is a crucial starting point, and there are many ways to do this.

It’s a great idea to start reading about ideas about systemic inequality, as well as finding ways to diversify the thoughts and ideas that you hear. It is too easy to go into the idea of being an ally with a fixed mentality – and actually, much of this way of thinking can be unhelpful, even if it comes from a good place. 

Promote creative expression

We can sometimes get stuck in the mindset that being an ally is all about political or economic matters in the workplace. In fact, there is a huge range of different ways to be authentically an ally to others in the workplace, in ways that you might not have considered. For example, promoting a colleague’s creative expression can be valuable.

“Creative support and encouragement is pivotal, especially from those who are in similar playing fields as you,” says Dondre Green, a photographer speaking to MPB. “This could look like sharing opportunities, advice, and budget negotiation numbers. I’ve seen even more Black creatives come together over the last few years and be put in positions to hire artists for assignments, too, which is a plus. In terms of representation, it matters.”

Listen to and lean on colleagues

It is important to resist the temptation to make assumptions about what is best for your colleagues. Even though your intentions may be good, you can end up putting your own presumptions forward and this might not end up being the best possible outcome from those you are trying to be an ally to. 

Remember that being an ally isn’t about doing what you think is right for an individual or community – rather it is about listening to what they need and putting that into action. And crucially, you need to think of listening as an act not only of understanding but also of empathizing.

It is therefore important to understand the nuances and language around racial issues and other issues that might affect minority groups  in the workplace by educating yourself, seeking professional guidance or finding support from colleagues.

The challenges that minorities and underrepresented groups face is often not the fault of the actions of individuals but rather systemic problems that won’t go away until they are acknowledged and faced.

Use your privilege 

Often misunderstood in the context of allyship, privilege is a key issue when it comes to providing support in the workplace. Some people take the concept of ‘privilege’ to be an insult or an attack on their personal character. This isn’t the case at all.

No one is saying that being privileged means that you have never faced any hardship of your own, or that you haven’t worked hard to get where you are.

Rather privilege should be seen as something that each of us generally has in one form or another.

Having a university education, for example, or facing no mental health issues, are forms of privilege that some people have. True allyship involves using the privileges that you have to defend or advocate for those who don’t have those same privileges. 

The first step in using privilege effectively is acknowledging it. From there it can be understood, and it can then be used to the advantage of those you are being an ally to. 

Many people are reluctant to be an ally in the workplace because they are worried that they might ‘say the wrong thing’ or act in a way that isn’t actually helpful. Don’t let this discourage you. Allyship exists in a sometimes awkward space and no one is expecting you to be perfect – it is all an opportunity for everyone to learn. 

Being an ally in the workplace is something that you can do that will make a genuine difference to colleagues’ lives and livelihoods.

Whether it is anything from ensuring that you are inclusive when listening to opinions in meetings, to implementing a diversity policy for future hiring; these are things that will benefit you and your business in the long-term. 

This blog was contributed to Workplace Fairness on January 4, 2023. Published with permission.

About the Author: Dakota Murphey is a contributor to Workplace Fairness.


Share this post

Focus on Black Women to Address Workplace Segregation

Share this post

Kemi Role

Occupational segregation in the United States reflects the systemic and structural racism built into the economy that marginalizes people of color.

Black workers are “crowded” into industries with poor working conditions, wages, and job security.  Black workers have also historically worked in jobs with the highest injury and fatality rates than other workers. Black women in particular are sorted into low-wage service sector occupations and five occupations account for more than half of all the jobs in which Black women work. 

The COVID pandemic has destabilized health, housing, and economic security for many communities in the United States and specifically for underpaid Black women. COVID disruptions to work and healthcare have compounded the challenges that Black women already face. Sixty-eight percent of Black mothers are the primary or sole breadwinners for their families. Black women are overrepresented in underpaid work, and are especially vulnerable to the disruptions to income and job loss caused by the pandemic.

Many Black women also work in positions that are now deemed essential including as nursing assistants, home health aides, and child care workers. This requirement to work at the frontlines of the pandemic puts Black women and their families at increased risk of exposure to the health and economic impacts of COVID. It has become abundantly clear that the US does not have the cohesive, integrated infrastructure to meet this monumental moment. Yet an ecosystem of Black women leaders and Black-led organizations are visioning new and bold program, policy, and narrative solutions that support Black women workers and address the impacts of occupational segregation. 

An Economy for All: Building a Black Women Best Legislative Agenda is a robust policy framework that centers Black women and recognizes that Black women’s economic well-being is central to a thriving economy. This framework recognizes the compounding impacts of racial and gender discrimination, and how Black women are sorted into underpaid, unstable, and dangerous occupations.

NELP continues to advocate for policies recommended in the report such as increased wages, paid family and medical leave, expanded access to unemployment insurance to support building Black women worker power and addressing the harmful impacts of occupational segregation. 

Bold policies such as guaranteed income also have the potential to build Black women worker power. The Magnolia Mothers’ Trust, a program of Springboard to Opportunities, is the first basic income pilot that specifically centered Black women head of households in Mississippi. The framework for the pilot was to provide “unrestricted, no strings attached cash…to better understand how a non-punitive, trust-based benefit could support families in not only exiting poverty but knowing that they have the freedom, dignity, and agency to be the anchors of their own lives”.

The initial pilot found that 100% of participants reported being able to meet their basic needs, increased positive family engagement, ability to pay bills, completion of high school education, and ability to pay over $10,000 in predatory debt. Make Sure the Shoe Fits: An Exploration of Guaranteed Income Pilots in California, a recent report from the Insight Center, underscores that targeted guaranteed income for Black women, creates more expansive choice with respect to work, has the potential to lift families out of poverty, and move the US towards a more equitable economy. 

Shifting the harmful impacts of occupational segregation for Black women workers also means dismantling the pervasive anti-Black narratives that undergird how work & the economy are shaped for them. Anti-Black racism is the scaffolding and fulcrum of radical economic inequality in the U.S., and of continued attempts to strip workers and communities of power and dignity.

Moving towards narratives that Center Blackness  “demands that we create and design policies and practices that intentionally lift up and protect Black people.

Radical shifts for Black women workers mean building new narratives centered on abundance, dignity, and collective liberation.  

This blog originally appeared at Nelp on December 13, 2022. Republished with permission.

About the Author: Kemi Role is the Director of Work Equity for Nelp.


Share this post

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

Share this post

Maximillion Alvarez

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

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

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

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

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

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

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


Share this post

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

Share this post

Laura Clawson

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

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

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

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

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

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

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

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

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

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

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


Share this post

Women in the Workplace: Advancing Your Career Post-Pandemic

Share this post

Economic conditions during the pandemic took an especially difficult toll on women, with nearly 2.2 million females leaving the workforce between February and October 2020, according to an analysis by the National Women’s Law Center.

Of course, this difficult environment doesn’t mean women should shy away from asserting their rights in the workplace or pursuing better opportunities. In fact, it means just the opposite. It’s more vital than ever that women speak up against discriminatory practices and for equal pay and equal opportunities for advancement.

As the pandemic eases, many employees are likely to return to an office environment in the coming months, although there’s some disconnect between leaders (who tend to prefer more office time) and workers (who have become accustomed to working from home).

With all this in mind, the question arises of how best to advance your career as a woman post-pandemic. Here are some ideas to consider.

Support union efforts.

Women have long lagged behind men in terms of union membership, which is a key mechanism for promoting wage equality

Indeed, research indicates that unions help narrow the wage gap between men and women in the workplace. In 2016, for instance, women working in unions received 94 cents on the dollar compared with unionized men. Alternatively, non-union women were paid just 78 cents on the dollar, compared with their non-union male counterparts.

And yet, as of 2020, men continued to have a higher union membership rate (11%) than women (10.5%), with the overall rate at 10.8% — barely half of what it was in 1983 — according to the Bureau of Labor Statistics.

The conclusion: Joining unions where they exist and advocating for unions where they don’t can help women narrow the wage gap and advance their careers.

Actively fight stereotypes. 

Women in the workplace are often characterized unfairly and, as a result, burdened with unrealistic expectations that go beyond those placed on their male counterparts — all while receiving less pay. 

Stereotypes are rampant and need to be continually challenged, both with evidence and active pushback against sexism. For example, the pervasive myth that men are better than math was debunked by a study in which women who focused on identifying themselves as being enrolled at an exclusive private college did as well as men on math tests. Other key research put to rest a different fable: that men are better at negotiating than women.

Not surprisingly, it is societal prejudices – not a lack of ability – that tends to hold women back. These stereotypes persist, and need to be confronted at every turn. 

Be willing to change jobs.

According to the research, changing jobs frequently can benefit you financially and allow you to advance your career more quickly. 

Staying in the same job might get you an annual cost-of-living raise, say 3%. But moving to a different position can give you a lot bigger boost: an average increase of 10% to 20%. In fact, if you stay at the same company for an average of more than two years, you’ll earn at least 50% less over your lifetime than you would have if you’d changed jobs.

Getting that new job or embarking on a new career path might require you to step out of your comfort zone and learn new skills, but it will be worth it.

Enhance your skill set.

Speaking of enhancing your skill set, continuing education is always helpful, and it doesn’t have to mean going back to school for an advanced degree. Many short-term seminars and virtual opportunities are available, too.

With tech skills especially in demand, look for marketable proficiencies in areas that translate well to multiple positions, such as familiarity with an array of commonly used software (such as Excel spreadsheets, PowerPoint, etc.). Familiarity with grant writing and internet marketing, particularly search engine optimization (SEO) can help you advance, as well.

Look for training opportunities, both in person and virtually, and once you’ve mastered a skill, update your physical and online resumes to reflect your expertise.

Find your tribe, and network.

Thanks to the internet, professionals looking to advance their careers can network across far greater geographic distances than ever before. Take advantage of sites like Alignable and LinkedIn, as well as your personal network on social media, to forge alliances with others on your career path. This will allow you to share tips and ideas that have brought you success and learn the same from others. 

Furthermore, you should stay in touch with former supervisors and co-workers who can advocate for you in your quest for a new position, if and when the time comes. If your list of trusted colleagues includes a potential mentor, be sure to pursue that relationship. According to three decades of research, mentorship leads to higher pay, faster advancement, and greater career satisfaction for mentees. 

Burnish your reputation.

Prospective employers look at a range of factors in considering new hires, including your employment history (this is an instance where changing jobs too frequently can hurt you) and even your credit rating.

You can combat any negatives in your employment record by seeking out positive recommendations from past employers and colleagues. This proactive step helps ensure that nothing in your past can undermine your goals. You should also carefully curate your social media accounts, as many employers will check public posts and photos before they offer you a position. 

Although they can’t get access to your credit score, employers may view your credit history in an attempt to learn how responsible you are, especially if you’re being considered for a financial position. If you’re thinking of applying for a new role, it’s worthwhile to check your report yourself and to take the steps to build or rebuild your credit. Then employers won’t be able to use that as an excuse to pass you by. 

These are just some of the ways you can advocate for yourself and advance your career in the post-pandemic world. Other opportunities are available, too. Be on the lookout for ways to move forward in boldness and confidence, so nothing can hold you back.

This blog is printed with permission.

About the author: Molly Barnes is a full-time digital nomad. She works remotely, travels constantly, and explores different cities across the U.S. She started her site, www.digitalnomadlife.org as a resource for travelers, nomads, and remote workers. Molly writes resources that help office and remote workers alike reach their personal and professional goals of becoming more successful. Follow along with her and her boyfriend Jacob on their blog as they pursue a nomadic lifestyle while freelancing and traveling across the country. 


Share this post

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

Share this post

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

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

New York’s “Right to Bargain Act”

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

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

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

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

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

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

A Longer History of Anti-Worker Deregulation

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

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

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

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

And yet, workers pushed back.

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

The Gig Companies’ “Third Way”

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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


Share this post

The insidious deception that is “employment at will”

Share this post

Photo of Robin E. Shea

Employers, don’t get played.

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

Oh, yeah?

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

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

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

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

I could go on all day.

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

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

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

So, how to deal with this?

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

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

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

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

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


Share this post

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

Share this post

Daniel B. Pasternak

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

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

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

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

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

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


Share this post

Let’s set the record straight on unions this Labor Day

Share this post

If your stereotype of a union worker is a white guy in a hard hat, let’s take this Labor Day to change that in a big way. Here’s the reality: 46.2% of union workers are women, and 36.1% are people of color. Black workers are the most likely to be represented by a union. More than half of workers represented by unions have an associate degree or more, and 43.1% have a bachelor’s degree. 

A reality you may be somewhat more aware of is that unions benefit their members and other workers covered by union contracts. Which they do—to the tune of an 11.2% wage boost for a worker under a union contract as compared to an equivalent worker in a nonunion workplace. But it’s important to understand that unions help nonunion workers, too. “Research shows that deunionization accounts for a sizable share of the growth in inequality between typical (median) workers and workers at the high end of the wage distribution in recent decades—on the order of 13–20% for women and 33–37% for men,” the Economic Policy Institute reports.

Put together the union wage boost and the diversity of today’s union members and there’s something else: Unions help fight not just overall economic inequality—the gulf between the 1% and the rest of us—but racial and gender disparities.

This, again from the Economic Policy Institute, is staggering: “White workers represented by union are paid ‘just’ 8.7% more than their nonunionized peers who are white, but Black workers represented by union are paid 13.7% more than their nonunionized peers who are Black, and Hispanic workers represented by unions are paid 20.1% more than their nonunionized peers who are Hispanic.”

Union workers are more likely to have paid sick days and health insurance—and unions have fought for laws ensuring that everyone will have access to paid sick days and health insurance.

So this Labor Day, remember: Unions help reduce racial and gender disparities for those covered by union contracts, as well as reducing the distance between typical workers and those at the very top—an effect that goes well beyond union members. They promote benefits like paid sick leave and have been instrumental in state and local campaigns to raise the minimum wage. And their members are definitely not all white guys in hard hats. (Not that there’s anything wrong with that.)

This blog was originally published at DailyKos on September 7, 2020. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


Share this post

Subscribe For Updates

Sign Up:

* indicates required

Recent Posts

Forbes Best of the Web, Summer 2004
A Forbes "Best of the Web" Blog

Archives

  • Tracking image for JustAnswer widget
  • Find an Employment Lawyer

  • Support Workplace Fairness

 
 

Find an Employment Attorney

The Workplace Fairness Attorney Directory features lawyers from across the United States who primarily represent workers in employment cases. Please note that Workplace Fairness does not operate a lawyer referral service and does not provide legal advice, and that Workplace Fairness is not responsible for any advice that you receive from anyone, attorney or non-attorney, you may contact from this site.