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Tag: wage and hour

‘We Want to See Our Families’: Frito-Lay Workers Strike Over 84-Hour Weeks, Meager Raises

Posted on by Dan DiMaggio
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Dan DiMaggio | Labor Notes

Frito-Lay workers in Topeka, Kansas, have been on strike since Monday over low pay and forced overtime.

Some workers have been forced to work 12-hour shifts, seven days a week, for weeks on end due to short staffing. They want to see that change.

“Nobody I know loves Frito-Lay enough that they want to live there,” said Monk Drapeaux-Stewart, a box drop technician, responsible for keeping the plant’s machines supplied with cardboard. “We want to go home and see our families. We want to have our weekends off. We want to work the time that we agreed to work—and hopefully not much more than that.”

‘BOTTOM OF THE LADDER’

The last several contracts have featured lump sum bonuses most years, leaving wage rates stagnant for most classifications. Drapeaux-Stewart said he’s only gotten a 77-cent increase over the last 12 years.

Meanwhile, the Topeka area has attracted several new manufacturing facilities and large warehouses over the past 20 years, taking advantage of its location smack in the center of the country, with access to a number of highway arteries. The Frito-Lay facility, which has been around for 50 years, now competes for workers with a Mars chocolate facility, a Bimbo bread bakery, and Home Depot and Target distribution centers, as well as a Goodyear tire plant that opened in 1945 (workers there are members of the Steelworkers). A Walmart distribution center is slated to open in September.

“Between all those industries, Frito-Lay sits at the bottom of the ladder as far as wage scales,” said Mark Benaka, business manager for Bakery Workers (BCTGM) Local 218, which represents workers at Frito-Lay and Bimbo. Other local facilities have offered significant wage increases in recent weeks, Benaka said, but Frito-Lay continues to offer pennies.

“Fifteen, 20 years ago Frito-Lay had a really good reputation—all you need is a high school diploma and you’ve got this job with good pay and benefits,” said Drapeaux-Stewart, who started working at the facility 16 years ago. “But slowly all of that has been whittled away.”

That’s made it difficult to maintain workers—and led to the mountains of forced overtime.

“Conditions are really just deteriorating as each contract rolls by,” said Cheri Renfro, an operator in the Geographic Enterprise Solutions department, where workers fulfill orders for smaller mom-and-pop shops and gas stations.

Renfro estimated that the company brought in more than 350 employees in the last year—and lost the same amount. “You have to wonder as a company why wouldn’t you question that—say, ‘Hey, what’s going on?’”

CONTRACT VOTED DOWN

Last week, workers voted down the latest contract offer from the company, which included a 2 percent wage increase this year and a 60-hour-a-week cap on the amount of hours a worker can be forced to work. The wages weren’t enough and the overtime cap would have meant more senior workers being forced in on weekends, workers say.

Other issues fueling workers’ anger include safety, a punitive attendance policy, and pressure from inexperienced supervisors competing for promotions. “This storm has been brewing for years,” Renfro wrote in a letter to the Topeka Capital-Journal, in which she outlined examples of the plant’s “toxic work environment,” including management keeping the line going after a worker collapsed and died and refusing bereavement leave for a worker whose father passed away during the Covid lockdown, since there was no funeral.

In late June, Local 218 members voted 353 to 30 to approve a strike.

“In the past people were afraid to go on strike—you keep hoping every contract is gonna be better,” said Renfro. “But as time has gone on the company has proven they are not gonna get better and they are not gonna work with us.”

SNACK SURGE

Frito-Lay is a division of PepsiCo and has been a major contributor to the company’s bottom line, earning $1.2 billion in profits on $4.2 billion in revenue in the first quarter. Last year, the division was responsible for over half of PepsiCo’s operating profits, with profits of $5.3 billion on $18.2 billion in revenue. PepsiCo also owns brands including Mountain Dew, Quaker Oats, Gatorade, Tropicana, and Aquafina.

Topeka is one of the largest of Frito-Lay’s 30 U.S. manufacturing facilities; most are nonunion. The 850 workers there make, package, and ship nearly every type of Frito-Lay snack: Lays potato chips, Tostitos, Cheetos, Sun Chips, Fritos, every flavor of Dorito, and more. Six hundred are members of Local 218 (Kansas is a right-to-work state).

The plant never slowed down during the pandemic, workers said. Instead, production increased, as people ate at home more and bought more comfort foods like chips. “I’ve learned that when something’s hitting Americans beneath the belt, the two main items that never suffer are snack foods and alcohol,” said Benaka, who retired from the plant in 2017 after 37 years.

Workers were at one point given an extra $20 a day to work during the pandemic, up to $100 a week—but that only lasted a few weeks. “I don’t know if they were afraid we were gonna get used to the higher wage,” said Renfro.

Production at the plant fluctuates seasonally—it’s busier in the summer and around big holidays and the Super Bowl. Workers are used to overtime during those periods. But recently the overtime has become constant. “Now we’ve having overtime when we shouldn’t be,” said Renfro—and a lot more of it.

‘I’M DONE WITH GIVING EVERYTHING TO FRITO-LAY’

Renfro said she worked 73 hours during the week leading up the Fourth of July, and then worked from 3 a.m. until 3 p.m. on the holiday. “I went to sleep—I didn’t even hear the fireworks, I was so tired.”

“I’ve had to miss going to so many holidays because I’m getting forced,” said Renfro. “I’ve had to call my mom and tell her I couldn’t make it. I don’t want to miss those moments anymore. I’m done with giving everything to Frito-Lay—my time, my holidays.”

One of the most hated forms of forced overtime at the plant is being forced to work a “suicide.” That’s when the company makes a worker stay four hours on top of their eight-hour shift, and then forces them in four hours early before their next shift—leaving them only eight hours off.

Drapeaux-Stewart said these shifts have become increasingly common, especially in departments with the worst understaffing, like the warehouse. “It’s crazy that this has become the blue-collar everyday [worker’s] new normal.”

EMPTY SCAB BUSES

The company has set up a parking lot a mile from the plant. It’s running coach buses from the lot every 15 minutes to shuttle in temporary workers and out-of-state scabs.

But strikers suspect that the buses are a ruse. “Most of these buses are completely empty, or have one to three people, not counting the driver,” said Drapeaux-Stewart. “It’s psychological warfare—they’re trying to demoralize and dispirit the men and women of the union in the hopes we’ll come groveling back for whatever crumbs they offer us.”

Benaka said the company also appears to be pulling empty trailers in and out of the facility to intimidate workers. “You’re talking about folks who’ve worked at this facility 30 or 40 years—they know what an empty trailer looks like.”

Strikers are also monitoring the facility’s smokestacks to get a sense of the strike’s impact. “There’s been no smoke, no steam, no nothing, no sign of production at all,” said Drapeaux-Stewart.

“Usually there’s always an odor coming out of Frito-Lay, but it’s been smelling really good outside,” said Renfro.

Local supporters have been donating food and water to the picket line. Some local restaurants have said they will stop serving Pepsi products. A local magazine, 785, has set up a fund to help strikers pay their water bills.

“I’m really amazed at the community support,” said Renfro. “It makes you proud to be a part of this community.”

“It’s scary but it’s exciting,” said Drapeaux-Stewart. “I have so much hope for this strike that we will finally get what we’ve needed—the guarantee of getting to see our families, and earning a living wage to support those families.”

This blog originally appeared at Labor Notes on July 10, 2021. Reprinted with permission.

About the Author: Dan Dimaggio is an assistant editor at Labor Notes.


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FY 2019 OSHA Budget Is Here: Good News, But More Work to be Done

Posted on by Jordan Barab
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For the first time practically in recorded memory, the Labor-HHS-Education budget, which includes OSHA, MSHA and NIOSH, was passed and signed into law before the beginning of the new Fiscal Year — October 1st.  The final OSHA budget actually contains a $5 million increase over FY 2018 and $8.8 million over the President’s FY 2019 Request. We can thank the Senate for that, considering the final budget is a whopping $12.5 million over what the House wanted.

Highlights include:

  • The total OSHA budget is $557.8 million, a $5 million increase over FY 2018
    • $1 million increase for federal enforcement,
    • $1.5 million increase for state plans
    • $2.5 million increase for federal compliance assistance ($3.5 million will be spent on the Voluntary Protection Programs)
    • Susan Harwood Worker Training Grant program continues to be funded at $10 million — despite the Trump administration’s continuing efforts to kill it.
    • There are no “poison pill” riders — attempts to kill silica enforcement or OSHA’s electronic recordkeeping standard.
  • The MSHA budget is level funded.
  • NIOSH will receive  $336.3 million (a $1 million increase over FY 2018).
    • Trump’s proposal to transfer NIOSH to the National Institutes of Health and slash the NIOSH budget was rejected. Funding for the Educational Resource Centers, Agriculture, Forestry and Fishing Research Centers and other NIOSH programs was maintained.
  • A few other Labor Department programs — Wage and Hour Division, Bureau of Labor Standards and the Office of Labor Management Standards — also got small increases although funding for employment services was cut.

A Word of Warning

But don’t get too happy. While these small increases (or level funding) are good news considering who’s in the White House and in control of Congress, funding for virtually all of the labor programs has been basically frozen for years. The total OSHA budget, and some line items like State Plan funding, are still lower than they were in 2012, as you can see in the table below.  And while the budget hasn’t shown much change, the  costs of operating these programs have increased, resulting in declining staffing levels and program activity.

As AFL-CIO Safety and Health Director Peg Seminario summarizes, “we have a victory holding the line, but much more work to be done.”

This blog was originally published at Confined Space on October 3, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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Here’s How Trump’s Labor Department Quietly Gave Bosses Even More Power Over Their Workers

Posted on by Michael Arria
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On January 5, the Department of Labor (DOL) quietly took a step to bolster the legal power of bosses over their workers by reissuing 17 previously withdrawn opinion letters. Developed at the end of George W. Bush’s final term, the letters had been withdrawn by the Obama administration, which discontinued the practice of issuing opinion letters altogether.

Opinion letters address specific questions submitted to the DOL by either employees or employers. The party then receives an official interpretation from the DOL Wage and Hour Division (WHD) detailing how the Fair Labor Standards Act (FLSA) and/or the Family and Medical Leave Act is implicated in their case. That opinion can then be used as guidance in future litigation. Other employers can also rely on an opinion letter, even if they didn’t request it themselves, as long as the facts are similar.

Critics of opinion letters point out that they take a long time for the labor department to craft (the George W. Bush administration averaged just 28 a year), and they only address one company’s specific situation—despite the fact that they can be used to the advantage of other employers in future cases.

There’s another big critique of opinion letters: They make it easier for employers to fight labor violation claims in court.

“Employers love opinion letters,” Patricia Smith, former Obama administration solicitor of labor, told In These Times. “They’re viewed by many as Get-Out-of-Jail Free cards.”

This sentiment was echoed by Michael Hancock, who managed the WHD opinion process for Bush’s final term. “It’s no secret that the opinion letter process largely serves the interest of employers; it gives them a legal defense if their practices comport with what the opinion letter says, even if the Department of Labor was wrong in what the opinion states,” he told Bloomberg last March. “It offers a serious and real significant defense to employers.”

Employers typically have the resources to pay their attorneys to talk with WHD officials before they request an opinion, so they can make sure they only ask if they are going to get a favorable result. The process is further skewed toward employers if the administration they’re requesting opinion from is employer-friendly—a fact that is certainly true of the Trump administration.

The Obama administration ended the established practice of issuing opinion letters and decided to issue a small amount of informal guidance documents instead. Last June, Trump’s labor secretary Alexander Acosta announced that he was withdrawing two of the informal guidance documents, a move that was hailed by business groups, as the documents both benefited workers. One of the letters dictated that subcontractors could be held liable if they failed to comply with FLSA requirements. The other offered an interpretation of “joint employers” and required some businesses to comply with the FLSA’s overtime rules.  That same month Acosta announced that opinion letters were returning.

Lawyers who say that they received favorable opinions for employers during the George W. Bush administration explained to Bloomberg how the process worked. Christopher A. Parlo, who represents management clients, said, “In the past you could go to DOL and lay out a scenario for them and they would give you their informal view on how that situation might play out. And if you didn’t believe that the result was one that would help your client or industry, you could choose not to ask for formal opinion. I thought that was a great process.”

The 17 Bush administration opinions that are being revived refer to a variety of topics, from year-end non-discretionary bonuses to salary deductions for full-day absences. Smith told In These Times that it was hard to know exactly what kind of impact these specific opinions would have, but said she thought that the move was at least partially symbolic: a signal to employers that the pro-business policies of Bush’s labor department have officially returned. “The message is, ‘We’re back,’” she said.

National Employment Law Project executive director Christine Owens issued a strong statement regarding the move, calling it “another example of how this administration is siding with big business to make it harder to get paid for working overtime and to make it easier for companies to reap the benefits of young workers’ labor without paying a cent for it.”

There’s a good chance that the WHD, which issues the opinion letters, will be soon be run by Trump nominee Cheryl Stanton, who is expected to be confirmed by the GOP-controlled Senate early this year. Stanton served as the White House’s principal legal liaison to the Labor Department under George W. Bush and spent years defending companies in labor cases. She’s also had an unpaid wage scandal of her own: In 2016 she was sued for allegedly failing to pay her house cleaners.

For the first time in over eight years, employers will be able to ask the White House for advice when they get tied up in legal battles. It seems quite probable that the pro-business forces dominating the Trump administration will have a lot to give.

This article was originally published at In These Times on January 18, 2018. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria


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Dairy workers call on Ben and Jerry’s to give them better hours and fair wages

Posted on by Esther Yu-Hsi Lee
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This week, dairy workers are using an annual ice cream giveaway day by Ben and Jerry’s to bring awareness to the long, hard hours and low wages that many in the industry face.

In the state of Vermont and across the country, dairy workers and supporters of migrant farmworkers rallied outside the ice cream company’s storefronts on Tuesday to call attention to what they say are human rights abuses in the dairy supply chain.

Migrant workers called on Ben and Jerry’s—a company known for its progressive values—to implement the “Milk with Dignity” program as part of an agreement the company signed in 2015 to ensure that the cooperatives supplying the milk would improve the quality of life for migrant workers, such as providing a weekly day off, improving health and safety conditions, and alleviating overcrowded housing issues, among other labor conditions.

Two years out, Ben and Jerry’s has yet to implement the initiative despite sourcing its milk from cooperatives that may not care about the abuses of dairy workers. The ice cream company also placed partial blame on the advocacy group Migrant Justice for being slow to finalize the draft agreement.

“We’ve been working diligently with them since then on the details of how to successfully operationalize the program, which still needs finalizing,” a recent Ben and Jerry’s statement read. “We strongly support the goals of Milk with Dignity and believe that a worker led program is the best way to protect the rights and dignity of the workers on Vermont’s dairy farms. We remain committed to the agreement we signed and are continuing to work towards a successful conclusion with Migrant Justice.”

Thelma Gomez, a Migrant Justice member, is one of many Vermont dairy workers who want to see better conditions for people in their industry. Her husband, who works on a dairy farm that sells to the St. Albans Cooperative Creamery, which Ben and Jerry’s buys from, has worked seven days a week for the past two years because he doesn’t have any days off from work. As a result, he has missed out on crucial life milestones of their twin three-year-old daughters.

Gomez’s husband is far from alone. According to a 2014 survey of 172 dairy farmworkers across the state of Vermont, 40 percent of workers said they didn’t get weekly days off. Another 40 percent said they weren’t paid the Vermont state minimum wage; farmworkers aren’t covered by federal and most states’ wage laws. And 30 percent of workers reported overcrowded housing.

The dairy industry has come to rely on undocumented immigrant labor partly because Americans don’t want to do the work, but also because agricultural visas only cover seasonal work, which excludes the year-round dairy work process. As a result, some of the 1,500 immigrant dairy workforce in Vermont are exploited by employers to conduct harsh labor.

“These are undocumented workers who are filling this labor need because farms in Vermont have had to grow and consolidate in order to deal with the fluctuating prices in the industry,” Will Lambeck, a staff member with the Migrant Justice, told ThinkProgress. “[Farms] are growing but they’re still relying on cheap labor to get the job done, relying on workers who will work 60, 70, 80 hours a week without breaks, without days off, for what’s often pay below minimum wage.”

“Those are, by and large, undocumented workers,” Lambeck added.

Advocate Enrique “Kike” Balcazar (pronounced “Kee-kay”), a 24-year-old Mexican immigrant, helped establish the “Milk with Dignity” program at Migrant Justice because he wanted to change the 60-to-80 hour work weeks that he regularly faced. Most recently, he made national news after the U.S. Immigration and Customs Enforcement (ICE) agency detained him as he was leaving the Migrant Justice office. Balcazar has since been released on bail and is now awaiting a hearing before an immigration judge.

Though Lambeck would not comment on Balcazar’s immigration status, he believes ICE agents may have targeted Balcazar because he is a prominent organizer and frequently shows up for immigrant rights events.

The Trump administration’s harsh immigration policies have broadened enforcement priorities and empowered ICE agents to cast a wider net. Lambeck said he believes that the recent detention of Balcazar along with two other Vermont dairy workers was an intentional tactic to force immigrants to continue feeling “persecuted” and “precarious.”

“What ICE and the federal government wants, isn’t to deport every single immigrant in the country because they know that this country needs the labor of immigrant workers,” Lambeck said. “What the motivation of these sorts of attacks is and the federal policy behind them, is to create a class of that are so persecuted and so precarious in their status in this country that they accept conditions that they otherwise would not.”

This blog was originally posted on ThinkProgress on April 4, 2017. Reprinted with permission.

Esther Yu-Hsi Lee is the Immigration Reporter for ThinkProgress. She received her B.A. in Psychology and Middle East and Islamic Studies and a M.A. in Psychology from New York University. A Deferred Action for Childhood Arrivals (DACA) beneficiary, Esther is passionate about immigration issues from all sides of the debate. She is also a White House Champion of Change recipient. Esther is originally from Los Angeles, CA. Contact her at EYLEE@thinkprogress.org.


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Labor Department goes silent on workplace safety enforcement under Trump

Posted on by Laura Clawson
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In November, the U.S. Occupational Safety and Health Administration announced fines against businesses with workers who were killed when they were pulled into a wood chipper, burned in a refinery fire and crushed in collapsing grain bins and construction trenches. In all, OSHA issued 33 enforcement news releases that month, and over 50 more from Dec. 1 until just before Inauguration Day on Jan. 20.

But since then, OSHA hasn’t issued a single news release about penalties or other enforcement actions by federal authorities. The same goes for a second Department of Labor division, Wage and Hour, which in previous weeks had announced the recovery of back wages for peanut processors in Georgia, hotel staffers in New York City, commercial painters in Texas and cafeteria workers at the U.S. Senate building.

This doesn’t mean that enforcement has stopped, but publicizing when bad bosses get fined is a way the Labor Department has gotten the word out—and potentially scared other employers away from similar abuses:

As a result, according to Barab’s ex-boss and former OSHA chief David Michaels, “Failure to publicize OSHA’s activities means many employers will not think to abate their hazards and more workers will be hurt.”

Maybe once Donald Trump gets a labor secretary in place and fills other key roles, the Labor Department will again tell the world about the fines companies face for endangering their workers. But we sure can’t take it for granted.

This article originally appeared at DailyKOS.com on March 4, 2017. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.


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Workers Say Trump’s Labor Secretary Nominee Is a Habitual Violator of Labor Law

Posted on by Liza Featherstone
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Andrew Puzder, Donald Trump’s nominee for labor secretary, is uniquely unqualified for that job. As secretary, he’d be charged with enforcing health and safety, overtime and other labor laws. But as CEO of CKE Restaurants, the parent company of Hardee’s and Carl’s Jr., he’s made his considerable fortune from violating these very same laws, according to a report by the Restaurant Opportunities Centers (ROC) United released this week.

ROC, which advocates for restaurant workers nationwide, surveyed 564 CKE workers, 76 percent of them women. In discussing the results of the survey, it’s important to note that while ROC surveyed a large number of workers, the respondents are people who chose to fill out a survey distributed by a workers’ rights organization, which they learned about through their social media networks. Still, ROC reported “unprecedented” interest in the survey among workers at CKE and their eagerness to be part of the study, and the experiences they reported, are striking reminders that by tapping Puzder, Trump has made clear that his administration will be a dystopian nightmare for U.S. workers.

A recent national survey among non-managerial women working in fast food found that 40 percent of such women have experienced sexual harassment on the job. Under Puzder, the problem could worsen: A whopping 66 percent of female CKE workers ROC surveyed had faced sexual harassment. Harassment came from supervisors, co-workers or—most often—customers, and took the form of sexual comments, groping, unwanted sexual texts and pressure for dates.

CKE is known for its sexist advertising, which depicts women in skimpy bikinis devouring cheeseburgers. And, certainly, imagery contributes to the culture, but when harassment is as pervasive as it appears to be at CKE, there are usually more structural problems at play. Companies in which women are harassed are generally places in which women—indeed, workers in general—are not valued or respected, and in which workers lack any institutional means to stand up for their rights.

In such companies, women are often not paid and promoted fairly. And, as one might expect, nearly one in five of the CKE workers ROC surveyed said he or she had faced discrimination at work, most commonly on the basis of gender, age or race.

Of the CKE employees who participated in the ROC survey, nearly one-third said they did not get meal breaks that are mandated by law; around one-fourth had been illegally forced to work off the clock or had timecards altered; almost one-third had been illegally deprived of overtime pay.

The ROC survey also found widespread health and safety violations. Nearly one-third of those surveyed said they had become sick or injured on the job. Workers described an environment of slippery floors, frequent grease burns and many said they had to do dangerous tasks—like cleaning a hood over a hot char broiler, for instance—without proper protective equipment.

Appointing Puzder as labor secretary is like inviting Tony Soprano to serve as attorney general. Let’s hope this enemy of working people will face humiliation and defeat when his confirmation goes before the Senate. His hearing, originally set for next Tuesday, may now be postponed until February. That delay would give labor—meaning anyone who works for a living—more time to mobilize against him. Let’s get started.

This post originally appeared on inthesetimes.com on January 13, 2017.  Reprinted with permission.

Liza Featherstone is a journalist and author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart and False Choices: The Faux Feminism of Hillary Rodham Clinton. 


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DOL Decision Could Mean the End of Wage Theft Through “Independent Contractor” Misclassification

Posted on by David Moberg
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David MobergAre you an employee?

It seems like a simple question that must have a simple answer for most people. But definitions in different laws and rulings enforcing the laws vary. And that variation provides an opening for a growing number of employers to cheat governments of taxes and workers of income, benefits and protections by misclassifying their employees, especially as “independent contractors.”

Last week, the administrator of the Department of Labor’s Wage and Hour Division, David Weil, released a “letter of guidance” that clarifies who is an employee and who is an “independent contractor”—that is, essentially an individual running his or her own business. He argues that the most definitive statement from Congress comes from the Fair Labor Standards Act, which says that “to employ” means “to suffer or permit to work.” And, he concludes, “under the Act, most workers are employees.”

The decision is “incredibly important,” says Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project (NELP), a pro-worker nonprofit organization, and may help to clear up confusion in the courts and encourage more enforcement of the law.

In recent years, many companies—from 10 percent to 30 percent or more of employers—employ at least several million people who are misclassified as independent contractors, according to a recent NELP report. They even go so far as to require workers to form a limited liability corporation or franchise (with themselves as the one and only participant) or to sign contracts declaring that they are independent contractors. According to another study from economist Jeffrey Eisenach of George Mason University, the number of independent contractors rose by one million from 2005 to 2010, including both fake and real contractors (often unemployed workers who re-label themselves as “consultants”).

One high-profile example is the Federal Express delivery driver—who wears a FedEx uniform, drives a company truck, follows a route set by the company and still is treated as a contractor. Weil’s ruling may also tip the judgment against companies like the Uber taxi service, increasingly targeted in lawsuits as improperly treating its drivers as independent contractors.

When employers misclassify workers, they often pay less for contractors, but most important, the workers lose a wide range of protections and benefits under the law such as unemployment compensation, workers’ compensation, minimum wage and overtime regulations, and governments lose billions of dollars a year in taxes that support those programs.

In his recent book The Fissured Workplace, Weil argues that workplace phenomena like subcontracting, using independent contractors, franchising and other ways to make employers less responsible for their employees is not just a result of competition driving down costs, whether as a result of globalization, weakening of unions, new technologies or new work processes, but also “pressure from public and private capital markets to improve returns.”

Unlike the “common law” test for who is an employer, which emphasizes the degree of control over one’s work, the FLSA standard usually relies on an “economic realities” test, which examines many different dimensions of work without favoring one above all others. But in his guidance letter, Weil writes, “the ultimate inquiry under the FLSA is whether the worker is economically dependent on the employer or truly in business for him or herself.” But the varied economic realities tested include such questions as how integral the worker is to the business, how much does managerial skill affect possible profit or loss, how big is the worker’s relative investment, does the worker’s success rely on special business skills in addition to any technical skills, what kind of control does the employer exercise, or how permanent is the relation of the worker to the employer.

The impact of this guidance letter may first be felt in courtrooms and in various federal or state agencies, but Ruckelshaus hopes that employers will voluntarily take it seriously. More likely, it will only be quite meaningful if there are systematic state and federal efforts to audit employer behavior, especially in industries where abuses are common, such as lower-skill construction, home care and janitorial work. Unions are also in a position to push for more vigorous enforcement, as Ruckelshaus said the Carpenters have been.

And when it is clear that the workers are not contractors but employees, the unions can do the workers a favor and invite them to join the union.

This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.


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California Supreme Court Set To Address Workers’ Meal And Rest Break Rights

Posted on by Patrick R. Kitchin
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W-F BlogThe California Supreme Court is expected to render a decision in the Brinker v. Superior Court case later this year that will answer critical legal questions about the meal and rest break rights of hourly workers in California.  At issue in the case is when and under what circumstances workers are entitled under California law to rest and meal breaks.

Though the case was originally filed as a class action, and the appeal involved the trial court’s order granting class certification to a group of 5,500 restaurant workers, the Supreme Court’s decision will necessarily address questions that will have an impact on individual meal and rest break cases as well.  Commentators from across the political spectrum agree Brinker is one of the most important labor cases pending before the California Supreme Court today.

The case is important to workers because the Court of Appeal’s decision severely limited the rights of workers to obtain damages for missed meal and rest breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

These conclusions, if adopted as state law by the Supreme Court, would effectively deny workers the right to use class actions to recover wages for missed meal and rest breaks in California.  Further, the adoption of these conclusions by California’s highest court would make it harder than ever before for individual workers to obtain relief for missed meal and rest breaks.

The restaurant workers have asked the Supreme Court to decide a number of key issues of law:

•    Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?
•    Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?
•    When and how frequently must an employer provide meal and rest breaks to its employees?
•    In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

The answers to these questions are of great interest to labor groups and business advocates alike, and battle lines were quickly drawn. A mere three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner, under Republican Governor Arnold Schwarzenegger, issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out in the Brinker appellate decision.

The Labor Commissioner virtually ignored other California appellate decisions more favorable to workers’ rights, and instead relied on federal court decisions interpreting California’s meal and rest break laws.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 94, for example, California’s Third District Court of Appeal had decided that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”

The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

Almost immediately after the Labor Commissioner issued its binding memorandum, the California Labor Federation responded with biting criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum, replacing it with one that still plainly sides with the Court of Appeal’s restrictive reading of workers’ meal and rest break rights.  The Schwarzenegger administration is clearly hopeful the Supreme Court will uphold the severe restrictions set out by the appellate court.

A decision in Brinker will have an immediate impact on pending lawsuits, particularly meal and rest break class actions.  Whether the Supreme Court ultimately backs the employer-friendly logic of the decision under review or adopts the worker protections set out in Cicairos, attorneys representing both employees and employers undoubtedly will have clearer guidance on the law.

Finally, many employee rights advocates are certain, or at least very hopeful, that the California Supreme Court’s decision will not result in a substantial impairment of an individual employee’s right to meal and rest breaks.  The larger and more immediate concern is that Brinker could seriously impair the ability of workers to sue their employer collectively for failing to provide appropriate meal and rest breaks.  If the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process to vindicate these important wage and hour rights.

About the Author: Patrick R. Kitchinis the founder of Kitchin Legal APC, a San Francisco, California employment law firm.   He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999.  According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.


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Unpaid Internships

Posted on by Jeffrey Hirsch
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No doubt following up on Charlie Sullivan’s post on unpaid law student internships, Steven Greenhouse at the New York Times has a story on the more general use of these internships.  It’s obviously been an issue for some time, but the bad economy has given employers more incentives to pinch pennies and made interns more desperate for experience, even the unpaid variety.  These internships can provide valuable experience and lead to a good job, but they can also undermine the purpose of wage laws and highlight class problems when only more wealth students can afford months of unpaid full-time work.  From the article:

With job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor.

Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. Last year, M. Patricia Smith, then New York’s labor commissioner, ordered investigations into several firms’ internships. Now, as the federal Labor Department’s top law enforcement official, she and the wage and hour division are stepping up enforcement nationwide.

Many regulators say that violations are widespread, but that it is unusually hard to mount a major enforcement effort because interns are often afraid to file complaints. Many fear they will become known as troublemakers in their chosen field, endangering their chances with a potential future employer.

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships.

The story also notes the DOL’s criteria for legal, unpaid internships, including similarity to academic or vocational training; no displacement of regular, paid workers; and that the employer derive no immediate advantage from the intern.  That last one, in particular, seems hard to reach in a lot of cases.

Remember that you heard it here first.

*This post originally appeared in Workplace Prof Blog on April 4, 2010. Reprinted with permission.

About the Author: Professor Hirsch joined the University of Tennessee law faculty in August 2004 after working in the Appellate Court Branch of the National Labor Relations Board in Washington, D.C. and serving as a judicial clerk for the Honorable Haldane R. Mayer on the U.S. Court of Appeals for the Federal Circuit and the Honorable Robert R. Beezer on the U.S. Court of Appeals for the Ninth Circuit. His practice experience focused on labor and employment law and he currently writes and teaches in this area, as well as federal courts. He also regularly speaks on various aspects of labor and employment law.


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Putting Wage Theft on the Map (Literally)

Posted on by Adam Kader
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Image: Adam KaderWorkers employed in low-wage and poorly regulated industries (most prominently restaurants, residential construction, domestic cleaning, and mechanics) are confronted with staggering exploitation as employers look to cut corners in today’s recession. Such exploitation includes health and safety violations, discrimination, sexual harassment, retaliation, firing for participating in union activity, and wage theft—failure to pay workers for work performed, including overtime hours and final pay periods.

To combat this wave of illegality, a Chicago worker center has collaborated with a local university to create a map of law-breaking employers against which they have organized, giving workers and activists a powerful visual tool to bring to politicians and the community.

The Arise Chicago Worker Center has no shortage of evidence for the dire conditions facing Chicago’s low-wage workers, having collaborated with over 2,050 workers in the past seven years.

None of the restaurant workers who have contacted our organization during that time received overtime wages. One of our members seriously injured his back at a construction site, but his employer refused to pay legally required workers’ compensation. One African-American member, who works for a state-funded social service agency, has consistently received paychecks one to three weeks late, for more than two years. A group of candy manufacturers were denied bathroom breaks.

Recently, we spoke with a Guatemalan immigrant car wash worker who works from 7 a.m. to 8 p.m., six days a week, for $5.25 an hour. He does not receive overtime pay and takes home an average of $9 a day in tips. If that weren’t enough, the employer does not provide gloves needed for the work, and illegally deducts the cost of the workers’ required uniform from his paychecks.

With the help of the University of Illinois-Chicago Center for Urban Economic Development, Arise has mapped by ward—a political district—the law-breaking employers against which Arise has organized. The maps illustrate law-breaking employers in 43 of Chicago’s 50 wards, affecting workers living in 47 of the wards.

Groups of worker center members plan to meet with their ward aldermen to discuss workplace abuses and enlist support for a city response to the biggest problem facing low-wage workers: wage theft.

Clergy whose congregations are located in the 43 wards will join the workers. Recently, Catholic Bishop John Manz attended a meeting with Alderman Danny Solis in the 25th Ward, where Arise has recorded a dozen labor violations.

Solis committed to introducing the issue to the city council’s Hispanic Caucus, whose wards include great concentrations of Arise membership. Alderman Mary Ann Smith’s office offered to explore legislative strategies that could deny additional business permits to law-breaking employers. Additional meetings and research are planned to determine the best approach to address wage theft in Chicago—which may include a citywide ordinance that could make stealing a worker’s wages treated like other forms of theft.

*This post originally appeared in Labor Notes on December 3, 2009. Reprinted with permission from the author.

About the Author: Adam Kader (www.arisechicago.org) is the director of the Arise Chicago Worker Center, part of the national Interfaith Worker Justice network.


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