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Sickened South African Mine Workers Seek Justice in Courts

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South Africa’s mining industry has been plastered across international headlines in recent days following the massacre of 34 protesting platinum mine workers in Marikana. This week, thousands of striking workers marched to protest the assault on labor rights and economic security by both the police and corporations.

But while the media’s gaze has fixed on roiling unrest at Lonmin, the more insidious crisis of safety conditions in the mines remains mostly buried below the surface. Over the years, perhaps hundreds of thousands of workers have been gradually sickened or killed by an epidemic that has largely gone ignored by the industry and the post-Apartheid government.

But now, some workers are resisting injustice in the mines by going to court, with a group of lawsuits alleging that three gold mining companies sickened many employees with toxic exposures that are tied to “varying degrees of silicosis”–a disease that causes chronic breathing problems–as well as tuberculosis and lung cancer.

The legal claims, which target AngloGold Ashanti (formerly Anglo American), Harmony Gold Mining Company, and Gold Fields, have been advanced by a recent landmark ruling by the South African Constitutional Court. The decision affirms that injured workers have the right to sue employers for occupational health-related damages.

The principle behind the litigation, according to Richard Lewis, an attorney with Hausfield LLP who is assisting the South African counsel, is that that the country’s mining regulations, some stretching back decades, as well as common law and the constitution, “impose a duty on the employer to provide safe and healthy working conditions.”

Lewis notes the decision is “uniquely” progressive, even compared to the legal framework in richer industrialized countries like the United States, because the recent court decision effectively offers an alternative to the traditional workers’ compensation system, which is known for woefully inadequate payments to sick workers–and for discrimination against black claimants.

“Usually one’s claim against an employer is limited to the workers’ compensation system,” Lewis says. “You can’t go to court in the civil common law system and sue for damages. But here… in South Africa the miners do have that right, to go beyond the compensation system and into the common law courts.” (In the United States, injured workers often face dysfunctional state workers’ compensation bureaucracies that tend to get ensnared by severe budget pressures.)

Even when workers aren’t being mowed down by police, death is never far from South Africa’s mines; workers have been routinely exposed to toxins with appallingly minimal physical protection. In a Reuters investigation published in March, a mine worker interviewed in Lesotho, who had worked for Gold Fields for more than three decades before being laid off in 2008, explained the do-it-yourself safety protocol:

“The only safety gear they gave us was gloves,” said 55-year-old Tele Nchaka… “We didn’t have masks. To stop the dust, we just had old T-shirts that we used to make wet.”

The impact of the gold miner litigation could be massive: According to Hausfeld, “between 320,000 and 500,000 black southern African gold miners have contracted silicosis and other occupational lung diseases in prior decades. The highest recorded rates of TB in the world have been found in the gold mines of South Africa and the disease figures have remained unconscionably high for decades.”

The next step for the current plaintiffs is to press forward with certification as a legal “class” and move toward a trial. The structure of the litigation leaves the door open for more workers to join the suit down the line, and some experts anticipate an explosion of claims due to the size of the workforce, the widespread presence of migrant workers from countries like Botswana and Malawi, and the prevalence of silicosis.

As with many other countries, including the United States, the health threats plaguing mine workers aren’t so much a product of lax laws; regulatory conditions have somewhat improved in recent years. The problem, says Lewis, is systemic failure of enforcement:

There is no lack of knowledge on how to prevent occupational lung disease. [It’s] not so much that the laws are weak, but that they’re not enforced. And so in reality they become weak and the workers don’t get the protection they deserve and that they need. And I think that’s true around the world.

This is the tragic subtext to many of these mine safety crises–from the chokehold of black lung in Appalachia to the Chinese mine explosions that regularly bury workers alive. The laws on the books aren’t applied on the ground, and workers are generally left at the mercy of the regulatory bodies that lack the staff and institutional capacity to hold employers accountable or prevent future hazards.

The claimant at the head of the compensation lawsuit that led to the breakthrough ruling, Thembekile Mankayi, died just before the court issued its decision in March 2011, as a result of respiratory illness attributed to his work at an underground mine near Johannesburg. Mankayi had toiled for Anglogold from 1979 to 1995, but although his career spanned through the fall of Apartheid, his body ultimately expired before he could see justice served in a democratic South Africa.

But some redemption may be on the horizon for many others sickened by the mines if the legal system finally provides them fair compensation. Under a neoliberal economic regime, South Africa’s mines remain haunted by the ghosts of Apartheid. But at least for some of the workers whose bodies bear the scars of that history, justice is no longer so far out of reach.

This blog originally appeared in Working In These Times on September 12, 2012. Reprinted with permission.

About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

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Lawsuit Sheds Light on Murky and Dangerous Warehouse Sector

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Working In These Times has frequently covered the warehousing industry and the way that complicated layers of different companies using, owning, operating and staffing warehouses make the sector ripe for labor abuse.

A motion for sanctions filed August 23 in a workers’ class action lawsuit against southern California Wal-Mart warehouses sheds more light on this structure and alleges that defendant Schneider Logistics failed to provide legally mandated evidence to avoid culpability for workers’ wages and working conditions.

Last October, workers affiliated with the group Warehouse Workers United filed a class action lawsuit in U.S. district court in California alleging labor law violations at Mira Loma warehouses operated solely for Wal-Mart stores. The lawsuit names Schneider Logistics Inc. (SLI) and its subsidiary Schneider Logistics Transloading and Distribution (STLD) along with the companies Impact and Premier, which hired people to staff the warehouses. Schneider took over operation of the warehouses in 2006.

The initial complaint said:

Plaintiffs bring this action on behalf of themselves and others similarly situated to recover the wages that defendants stole — and are continuing to steal — from them in violation of federal and California law. Plaintiffs also seek redress for other consequences of defendants’ unlawful conspiracy, including defendants’ wrongful scheme to hide and then cover up the extent of their wrongdoing by failing to keep mandatory payroll records, falsifying records of hours worked and compensation owed, and concealing, denying and/or misrepresenting to the workers the amount of their earnings and on what basis these earnings were calculated.

A key question is whether Schneider or STLD directly employed–and is therefore responsible for the working conditions of–the plaintiffs, including lead plaintiff Everardo Carrillo. The plaintiffs allege that Schneider is their “joint employer” along with the other defendants.

Schneider Logistics initially argued that it had “no connection with or responsibility for the operation, oversight, or supervision” of the workers at the Mira Loma warehouses, as quoted in the recent motion. It notes that Schneider Logistics Secretary-Treasurer Amy Schilling signed a sworn declaration saying the company had “no business or contractual relationship” with co-defendants Impact and Premier. And the motion alleges that Schneider sought to continue this image by failing to turn over documents during the discovery process that would have indicated otherwise.

In April Schneider attorneys responded to a discovery request without actually looking for the requested documents, according to the motion. In other words, they allegedly were either sloppy or intentionally avoided turning over evidence to which the plaintiffs have a legal right.

This became clear when documents turned over by Impact and Premier included highly relevant Schneider documents which Schneider attorneys had specifically said did not exist. The motion notes:

Schneider has now produced thousands of documents it previously claimed did not exist, including over 12,100 pages of personnel files it maintained for the Impact and Premier class members (whom it claims not to jointly employ), and the workplace rules and training requirements it imposed on all class members.

The plaintiffs say the new documents show that “Schneider’s top managers knowingly made material false statements” to the court, including claims that the warehouse employees are not subject to Schneider employment policies and that Schneider does not keep personnel files on them or set productivity quotas. The documents showed that Schilling herself signed contracts with Premier and Impact, on behalf of STLD and “its affiliates.” Meanwhile, Schilling is also vice president and controller of Schneider National, the parent company of the other Schneider groups, which actually negotiated the contracts with Impact and Premier.

Once it was clear that Schneider did indeed have contracts with Impact and Premier, General Manager Vince Redgrave told the court that the contracts gave Schneider no say over work terms or conditions. The court ordered that Schneider actually produce the contracts, and when it did, as the motion says, “they proved the exact opposite of what Vince Redgrave had testified.”

The federal district judge, Christina Snyder, wrote in a preliminary injunction ruling that the “contracts dictate nearly every material term of plaintiffs’ employment including how Impact and PWV (Premier) must conduct pre-employment screening and new employment training.”

The documents also showed that, contrary to Redgrave’s previous testimony, Schneider did set specific productivity quotas for the warehouse workers and in fact complained to Premier when the rate of cases unloaded per hour dropped. Schneider officials also talked about how to remedy Impact’s “low productivity levels.”

Warehouse worker groups have long argued that unrealistic and escalating productivity quotas are among the things that lead to high chronic and acute injury rates in warehouses. In July, Warehouse Workers United filed a complaint with California’s Occupational Safety and Health Administration office.

The recent motion also alleges that Schneider or its attorneys did not order employees to preserve emails relevant to the case, as is standard required legal procedure. It says the company has an automatic delete email function for emails from the Mira Loma warehouses, meaning emails are deleted automatically after a short period of time, and employees also have “absolute discretion” over whether to save or delete emails. The motion says Schneider was slow to issue a memo instating a “litigation hold”—meaning employees should preserve relevant communications. And it alleges even after such a memo was issued, Schneider never enforced it.

The motion also alleges that Schneider destroyed and denied the existence of security camera footage that would aid the plaintiffs’ case. The motion demands that Schneider turn over video footage and also a log of any video that has been destroyed since October 2011.

The motion asks that the court make note of Schneider’s alleged misconduct, tell Schneider that further misconduct will result in sanctions, and provide relevant attorneys’ fees and costs to the plaintiffs. It notes that the court could also decide to inform a jury of Schneider’s false statements and other discovery violations, and asks that the court establish a “rebuttal presumption” that Schneider is indeed a “joint employer” of the plaintiffs.

Overall, the lawsuit is part of WWU’s and individual workers’ ongoing campaign to improve conditions in warehouses and shed light on the complicated employment structure that allows major companies like Wal-Mart to benefit from the low-paid, dangerous work of a largely temporary workforce.

This blog originally appeared in Working In These Times on September 4, 2012. Reprinted with permission.

About the author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.

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Giant Supervalu Grocery Chain Sues Small Workers Center

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R.M. ArrietaOrganizers say a lawsuit filed by a Minnesota grocery store chain against a worker center is nothing more than an attempt to bankrupt and silence them. Supervalu’s suit is a culmination of activity over 18 months in which workers have been calling for fair pay and better working conditions.

In May, In These Times reported that workers, frustrated with lack of response from representatives at Supervalu, parent company of Cub Foods, went on a 12-day hunger strike. That strike ended when several state lawmakers attempted to get executives at the retail chain giant to meet for talks and called on the group to end the fast.

Supervalu executives reportedly refused to meet with the workers and filed acivil lawsuit July 18 requesting damages against the small nonprofit workers center that supported the action: Trabajadores Unidos en Lucha (CTUL).

The chain also filed a temporary injunction imposed by a judge and, among other things, ordered CTUL to post the suit on its website and Facebook page and on any Twitter feeds and link the order in any email, web postings or Twitter feeds concerning any planned actions against Cub Foods.

“We did not want to file a suit against CTUL, but because of their aggressive protests taking place in our stores we had no choice,” said Mike Siemienas, a spokesman at Supervalu, Inc. told In These Times.

Attorneys representing CTUL have filed a motion to dismiss the charges.

“We find it hard to believe the lawsuit was because of that. We believe it is aimed at trying to bankrupt us and silence us,” said CTUL spokeswoman Veronica Mendez, who has also been named in the suit.

The workers are calling for job safety and a “Code of Conduct.”

Several state representatives including Congressman Keith Ellison, State Senator Patricia Torres-Ray ELCA Bishop Craig Johnson, Rep. Jim Davnie, and Minneapolis City Council Member Gary Schiff are backing the workers. The Minneapolis City Council signed a resolution in support.

CTUL stated that it believes the lawsuit is in retaliation for the nonprofit calling on the help of the government to help resolve the labor dispute.

“Cub Foods should be commended for donating to food pantries and helping tornado victims. But the core of good corporate citizenship is not charitable giving; it’s treating your workers with respect and dignity. These workers have asked for little more than to meet and discuss their pay and work rules, and they have been rebuffed,” Congressman Ellison said in a statement.

Supervalu is one of the 100 richest corporations in the world – making more than $40 million in profits last year. For the quarter ending June 18, itreported a profit of $74 million, according to the Wall Street Journal.

Meanwhile, over the past 10 years, working conditions for cleaners have deteriorated. Many cleaners who once earned between $10-11 an hour now earn $7-8 an hour. The cleaning crew has shrunk from four to two, according to Mendez.

Cub Foods says it’s not responsible for the poor treatment of workers because they are subcontracted out to a cleaning company, Carlson Building Maintenance, whom Cub says is responsible for their workers. Said Siemienas, “It is a common practice for retailers to use third-party services to clean their floors. We ensure that our contractors follow all laws and labor laws.”

However, this practice allows retail companies take the lowest bid, pitting maintenance companies against each other. To keep the costs low, these companies do what they can to cut corners.

Mendez explains that Carlsen has told workers they do not have the money because they are not getting more money from Supervalu and that in fact, the price of the contract is going down.

“Carlsen doesn’t have ability to pay workers what they need to be paid. It’s clear to us that if there’s going to be real change, it has got to come from Supervalu.”


This week, workers and faith leaders went to a recent Supervalu shareholder meeting in Edina, Minn. Pastors Grant Stevensen and the Rev. John Gutterman got in, and asked the company to do the right thing.

Stated CTUL member Lucila Dominguez, who was one of the people who took part in the hunger strike in May.

This problem will not change until large retail chains like Cub Foods agree to ensure fair wages and working conditions for workers who clean their stores regardless of which contractor they use.

Said Mendez, “They’ve made lots of claims as to why they wanted this lawsuit, when all we wanted to do was sit and talk.”

This article originally appeared on the Working In These Times blog on July 29, 2011. Reprinted with permission.

About the Author: R.M. Arrieta was born and raised in Los Angeles. She has worked at three daily newspapers and two television stations and is a former editor of the Bay Area’s independent community bilingual biweekly El Tecolote. She currently lives in San Francisco, where she is a freelance journalist writing for a variety of outlets. She can be reached at rmarrieta@inthesetimes.com.

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Warehouse Workers File Second Lawsuit Against Chicago-Area Wal-Mart Contractors

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kari-lydersenCHICAGO—Last week, the Chicago-based group Warehouse Workers for Justice (WWJ) filed its second class action lawsuit this year against an agency responsible for staffing Wal-Mart’s warehouse in suburban Elwood.

The suit, filed May 18, charges the staffing company SIMOS Insourcing Solutions with legal violations including not fulfilling promises made to workers as part of the terms of their hiring. Among other things, workers said they were offered paid vacations that were never granted.

According to a WWJ press release, the company “required employees to incur fees to get their paychecks and failed to give the warehouse workers critical information about their pay, benefits and other terms of their employment as required by Illinois law.”

The new class action lawsuit is part of a larger campaign to force staffing agencies to give workers written proof of their contracts, their wages and the way their pay is calculated. Wage theft is reportedly rampant in the industry, but often hard to prove since workers are given little or no documentation of what they have been promised, how many hours they have worked, how much they are paid and in some cases who they are even technically working for.

In March, the group filed another class action lawsuit alleging that the Reliable Staffing agency, which hired workers for the Elwood Wal-Mart warehouse, paid them much less than promised, in part through manipulating or changing the terms of a piece-meal pay schedule.

As I previously blogged:

“The check stub is a fiction – their check stub could show they worked 36 hours when they really worked 72 hours,” said attorney Chris Williams. That’s why, Williams said, it’s so important the workers are able to demand their billing records under the state day labor services act.

Also earlier this month workers at a Kraft-Cadbury warehouse in the suburb of Joliet filed complaints with the Equal Employment Opportunity Commission about alleged discrimination by the firm Schenker Logistics. Filing such a complaint is the first step in filing an employment discrimination lawsuit, if the EEOC decides not to investigate itself.

These legal actions are part of a multi-faceted campaign to hold staffing companies legally accountable for their behavior; and also build greater public awareness of rampant labor rights issues in the warehouse industry; and to embolden workers to speak out about these issues. The group has not sued Wal-Mart, since the company argues it is not directly responsible for hiring and wage and hour issues in its warehouses. SIMOS is based in Georgia and promises to slash labor costs for clients like Wal-Mart. The company’s website says:

Ultimately, our goal is to drive constant improvements in cost, quality, and on time delivery. SIMOS consistently delivers cost reduction programs our clients can actually see. On average, SIMOS customers save 10-25% in labor costs per unit while increasing their output by 15-30%.

It says it achieves these labor cost reductions by a “combination of engineering, workforce management and supervision.” Critics say this is just code for paying workers as little as possible, including by keeping them in the dark about the actual terms of their working agreements.

This article originally appeared on the Working In These Times blog on May 23, 2011. Reprinted with permission.

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

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Another Reason to Create a Winning Workplace: Less Litigation

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In recent posts on our blog I’ve mentioned the following as ROI for small organizations that define employee engagement, build and utilize practices to engage employees, and turn to manager team building to create a strong culture that trickles down from leadership:

But there’s another one that has perhaps a greater impact on the bottom line than any of the above: greatly decreased chance of a stakeholder (employee, supplier, customer) bringing forth a lawsuit against your business.

I was astounded to read on HR Daily Advisor recently that according to a survey by the law firm Fulbright & Jaworski L.L.P., close to 4 out of 5 companies experienced new litigation in 2008.  Compare that to cases you could count on one hand among the 70 companies that make up our Top Small Workplaces Winners and Finalists over the last two years.

And virtually all of those were due not to egregious behavior by the managers or the leadership (not as a result of a toxic company culture), but by natural oversights or miscalculations in contracts and other arrangements between employees and the company.  In addition, to my knowledge these cases were settled quickly and amicably.

So if you want your organization to fall among the 21% that are litigation free, your seemingly “soft” focus on fostering good team building can go a long way toward making that happen.

Your thoughts?

Cross-posted from the Winning Workplaces blog.

About the Author: Mark Harbeke is Director of Content Development for Winning Workplaces.  Mark’s role is to ensure 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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