Firing the Bankrupt Employee

Imagine two people file for bankruptcy.  One is fired by his employer because he filed.  The other applies for a job at the same employer, and is told that the company doesn't hire bankrupts.  Has the company violated the law under either scenario?

The answer is yes and no.  Under Section 525 of the Bankruptcy Code, an employee cannot be fired because he or she filed for bankruptcy.  However, as the Third Circuit ruled recently in Rea v. Federated, that same employer can refuse to hire an employee because he filed.

Dean Rea went bankrupt in 2002, and discharged his debts in 2003.  Six years later, in 2009, he applied for a job at Federated.  Federated initially indicated it was going to hire him, but then later sent him a letter saying it was not going to hire him because of the bankruptcy.  Rea sued under Section 525 of the Bankruptcy Code.

Subsection (a) of the Code says that government entitites cannot discriminate against people who file for bankruptcy, including a refusal to hire.  Subection (b), however, says that no private employer can "discriminate" against an employee who files.  Reading these sections together, the court in Rea concluded that the omission of language banning discrimination in hiring in Subsection (b) meant that Congress intended to ban private employers from discriminating against current employees only.

The court's decision seems correct, as a matter of statutory interpretation.  However, the law does not seem to make any sense.  Why should an employer be barred from firing someone for filing for bankruptcy, but not be barred from refusing to hire?  One reason might be that an employer should not be forced to hire a bankrupt, who in some circles is regarded as less than trustworthy, yet should also not be permitted to fire an employee who is otherwise a good employee.

It is expected that some 1.5 million people will file for bankruptcy this year, up from 1.4 million last year and less than a million in 2008.  In these economic times, that is not surprising.  What is surprising is that an employer would revoke an offer of employment to someone who had filed more than six years prior to the job offer.

Obama: Master Negotiator Against Himself

One of the first rules in labor negotiations is never to negotiate against yourself.  So if your goal is to get a dollar an hour raise, you don't start at a dollar, then negotiate down from there.  Likewise, if you are buying a car, you don't offer the dealer the asking price on the car.  You offer less.  Anyone who has bought a car understands this principle.  For some reason, however, President Obama does not get this concept.  From health care to the current tax bill, Obama starts in the middle, and then slowly works his way towards the Republicans. 

This is what is perhaps so infuriating to liberals who Obama (as well as Fox News) have been slamming for criticising the tax deal.  On health care, Obama quickly dropped the public option, and instead crafted a deal that, in the end, every single Republican opposed anyway.  Health care then became a campaign issue for Republicans who called it socialism.  If your enemies are going to oppose you at all costs, and if you are going to get tarred a socialist, shouldn't you at least craft legislation that is a little more "socialist?"

Likewise the tax cuts.  What did Obama get in return for caving in to the Republican demand that the wealthiest in this country suffer  no tax increases?  Not a lot.  He got a thirteen week extension of unemployment benefits -- keep in mind that there has never been opposition to federal unemployment benefit extentions when the unemployment rate was this high.  He got a cut in payroll taxes, but only on the employee side of the ledger -- and as one columnist pointed out, cutting payroll taxes and starving Social Security has long been a right-wing dream.  The payroll tax cut is also a benefit not enjoyed by state and federal workers, who don't pay into Social Security.  He also got some tax breaks for investments.  As Paul Krugman points out, how did Democrats get to the point that they have to plead with Republicans for tax cuts?

I'm not an economist, so I'm not sure whether the tax package is good or bad policy.  I do know that Obama needs to stop negotiating against himself if he has wants to have any hope of controlling the next Republican Congress.

The Glengarry Glen Ross Boss

In the brilliant movie Glengarry Glen Ross, Alec Baldwin "motivates" his sales team with a contest:  first prize is a Cadillac, second prize is a set of steak knives, and third prize is -- you're fired!  A sales manager is Utah seems to have been inspired by the movie.

In Huydens v. Prosper, a lawsuit claims that a supervisor would punish employees who did not meet performance expectations by drawing mustaches on their face with indelible marker.  He'd also walk around the office with a wooden paddle, and slam it on tables and desks.  The supervisor went too far for one employee, however, when the supervisor waterboarded him in the office.

According to the complaint, the supervisor asked for "volunteers" for a motivational exercise. The plaintiff alleges that he volunteered.  The employee and others were brought to a hill near the office, where he was ordered to lie down with his face pointed downill.  Other employees held his arms and legs, and the supervisor then poured water out of a gallon jug into his mouth and nose so he could not breathe.

The employee struggled, but was being held down by other employees and could not escape.  At the conclusion of this team building exercise, the supervisor told employees they should "work as hard at making sales as Huydens had tried to breathe."  The employee suffered nightmares and psychological difficulties, and ended up suing for a variety of claims.

The case ended up in the Utah Supreme Court after it was dismissed by a lower court judge.  Incredibly, one reason the court below dismissed the assault charge was that the exercise was done not with the intent to harm the plaintiff, but as a motivational exercise.  The Utah Supremes did not resolve the merits of the dispute, but instead send it back to the court for reconsideration. 

Waterboarding in the office.  What will they think of next.
 

Careful What You Tweet

As everyone knows by now, employees can be fired for things they do off duty, like post an inappropriate remarks about the boss on Facebook.  Of course, the employee might be saved if the post implicates the National Labor Relations Act's restrictions on discharging someone for protected activity.  The employee might also be saved if he or she has a union that will take their case to arbitration.

Take the matter of King Man Ho and Radio Free Asia.  Last January, Hillary Clinton was in Hong Kong and gave a speech (ironically, it turns out) on internet freedom.  Ho covered the story and quoted the reactions of two Chinese bloggers to the speech. 

The bloggers accused Ho of misquoting them and being unethical on their Twitter accounts.  Ho, trying to find out why they were making the accusations, used his own Twitter account to try and find out what was going on.  Ho became somewhat agitated in his Tweets, eventually prompting his editor to tell him to stop Tweeting.  Ho Tweeted one more time, which resulted in his termination for insubordination and violating RFA rules about appropriate behavior.

Had Ho been employed by a non-union employer, that would have been the end of the story.  However, because Ho's union contract had a provision in it stating that employees could not be discharged except with "just cause," he was able to present his case to an arbitrator.

The arbitrator ruled that Ho was discharged without just cause, and reinstated him to employment with full back pay and benefits.  The arbitrator acknowledged that the employer could have a policy regarding Tweeting, but held that it was unclear whether the policy had been violated given the circumstances of the case.  Additionally, the arbitrator found that Ho was not guilty of insubordination because the directives he had been given by his supervisor were not very clear.  The decision can be read here.

As technology evolves, so does the employer's ability to reach outside the workplace and fire employees for violating work rules on their own time.  But with cases like the NLRA Facebook case and this one, sometimes old standards applied to new technology save the day.

Petty Tyrants in the Workplace

At one time or another, almost everyone has had to work for a petty tyrant.  The boss who belittles, the supervisor who enforces every little rule, the foreman who criticizes every aspect of the job.  Last week's This American Life devoted an entire episode to the rise and fall of a School District Maintenance Manager who terrorized employees for several years before ending up in jail for some of his extracurricular activies.  If you haven't listened to the show, click here, it's definitely worth listening to. 

Steve Raucci, the star of the show, rose from a position as a maintenance man to head of the maintenance department for a school district in New York, in charge of 120 employees.  At the same time, Raucci was president of his local union.  He could thus not only punish and fire employees, he could also quash their grievances.  Raucci's intimidation and terror of employees was such that no one dared cross him.  Eventually he was arrested and sent to jail for seting off a bomb, yes, a bomb, near the front door of an employee he was trying to make quit.

Raucci's petty tyranies differ only in kind from the types of tales I hear on a weekly basis.  Employees complain of being harassed by their supervisor, or of having a target on their back, or of being hounded out of the workplace.  In many cases, there is nothing that can be done  -- unless the harassment is on account of race, age, sex, union acticity, or another unlawful reason.  And many times the "harassment" isn't really harassment at all -- it's more a case of a supervisor taking a dislike to someone and then scrutinizing their work.  If scrutinized closely enough, any employee's work will reveal mistakes or other issues.

Sadly, the worst bullies are usually bosses who rose up through the ranks.  The problem seems to be more acute in the public sector as well.  I'm not sure why that is, except for the fact that there are sometimes more layers of supervison in the public sector, and less accountability for managers.

Petty tyrants cause hardship not only for those below them, but for the employer as well.  When employees aren't treated fairly, they resort to lawsuits, EEOC filings, and filing grievances.  And, in the non-union sector, more organizing drives have probably been started because of bad supervisors than bad wages and benefits.  One management lawyer friend of mine says that whenever he is retained by a client to defeat a union organizing drive, the first thing he wants to know is who the first-level supervisors are, and whether they are liked by the employees.  If the petty tyrant is the problem, it is pretty much assured that he will be fired first in an attempt to defeat the organizing drive.

Extending Unemployment

The next few weeks will be crucial for the five million Americans who have been out of work for more than 26 weeks collecting unemployment.  That's because federal unemployment extension benefits expire on November 30, and many lawmakers are opposed to extended the benefits further.

Most states provide unemployment benefits of up to 26 weeks.  As it has in previous recessions, the federal government provided funding to extend benefits up to a year.  The government has never stopped funding these type of extensions when the jobless rate was this high -- 9.6%.  Yet many politicians are clamoring to do just that, claiming that we should not increase the deficit without spending cuts to offset the cost of the extension.

One of the rich ironies of politics these days is the spectable of lawmakers pimping for tax cuts for the super-rich while at the same time opposing an extention in unemployment benefits on the ground that it would contribute to the deficit.  After all, extending unemployment benefits for an additional year would cost about 6 to 7 billion per month, or around 72 billion.  That's less than extending the Bush tax cuts for the wealthy for two years. 

While the dollar amount for these two policies is roughly the same, the economic effect is not. It is estimated that every dollar spent on unemployment insurance generates $1.60 in spending activity.  Unemployment insurance, in other words, is a stimulus to the economy.  Tax cuts for the rich, on the other hand, do nothing to stimulate the economy -- unless, like believing in the tooth fairy, one believes in the trickle down theory of wealth creation.  It seems obvious to me that cutting unemployment off a few weeks before Christmas is going to hurt, not help the economy.

But don't unemployment benefits discourage people from working?  That argument has been made, and there may be something to it.  Some people, for sure, would prefer to collect unemployment than take a job they don't really care to do.  However, the vast majority of people on unemployment are there becaure there are no jobs for them to take in this "jobless recovery."

There are only six more working days for Congress to pass the unemployment extension.  Several groups are sponsoring call ins to get people to call their Senators in support of the extension.  Call yours today toll-free at  1-866-606-1189 or 1-877-662-2889 and tell him or her to do the right thing

Rip Van Winkle Awakens

It's not often that the NLRB gets front page treatment in major newspapers, and I don't think it's ever been one of the "most viewed" stories on the online New York Times.  Certainly it's never been featured on gossip site PerezHilton.  But this week the Board has been in the news because it is going after an employer that fired an employee for her Facebook posts criticizing a supervisor.  Perez Hilton, incidentally, thinks the employee should have been fired.

The employee in question was fired by American Medical Response after she posted comments critical of one of the company and one of her superivsors on her Facebook page.  The NLRB issued a complaint charging the company with firing the worker for engaging in protected activity -- criticizing the boss -- and for maintain a rule prohibiting employees from talking about the company in any way on Facebook or other social media sites.

The NLRB is merely extending to Facebook posts a rule that already applies in the workplace:  talking about working conditions with coworkers is protected under the NLRA; thus, it would be unlawful to fire an employee for complaining about a supervisor while standing at the water cooler.  The only difference in this case is that the discussion took place on Facebook.

Perhaps this is a signal that the NLRB is coming into the 21st Century.  One of the more infamous cases under the Bush Board was Register Guard.  In that case, the NLRB held that employees had no right to use employer email systems for union activity, even though employees could use emails for all kinds of other activities.  In a blistering dissent, Members Liebman and Walsh accused the majority of confirming the Board's reputation as the “Rip Van Winkle of administrative agencies.”  Given the Board's analysis in Register Guard, it was hard to disagree with the characterization.

The decision to issue a complaint in the Facebook case pehaps shows a new willingness of the NLRB to tackle emerging workplace issues and bring the agency into this modern era of the internet, email, and social media.  Given the recent election, the Board may only have two years to do that before a Republican president reshuffles the composition of the Board and starts a retreat from boldly enforcing employee rights.

Stripping Dancers of Employee Rights

Who wants to talk about the depressing election results and the probable effect on labor?  Not me.  Let's talk about strippers instead. 

Some people argue that exotic dancers are "exploited" by men.  While an argument can be made that the dancers are actually exploiting the men who pay to see them dance, the real exploitation comes at the hands of the club owners.  There is a long history of club owners taking tips, making dancers pay "house fees" to dance, and classifying dancers as independent contractors to avoid things like taxes, workers compensation, overtime, and unionization.

A class action lawsuit in New York seeks to stop some of these expolitive practices.  In a recent ruling, the judge overseeing the case ruled that dancers can bring a class action lawsuit against the Penthouse Executive Club for violations of the Fair Labor Standards Act ("FLSA").   The dancers are claiming that he club violated the FLSA Act by failing to pay them minimum wages and overtime, for illegally charging them a "house fee" to dance, for stealing tips by taking 20% of the haul, and for failing to reimburse dancers for their uniforms (such as they are) as is required by New York law.  The club is defending the suit by claiming that the dancers are "independent contractors."  The judge held preliminarily that the dancers qualified as a "class" for purposes of bringing a class action.

Exotic dancers have for years been classified by employers as "independent contractors" rather than employees so that the employer can avoid the niceties of providing workers compensation, paying overtime, nad avoiding unionization.  The NLRB has not been friendly to exotic dancer's claims that they are employees under the National Labor Relations Act.  Jonbruni Inc. 337 NLRB No. 35 (2001).  However, the handful of federal courts to look at the issue have held that exotic dancers are employees, not independent contractors.   See Morse v. Dancer's Showclub, 2010 U.S. Dist. Ct. LEXIS 55636 (June 4, 2010). 

Classfying workers as independent contractors is a familiar employer dodge.  Though it's unlikely to go anywhere now, the Employee Misclassification Protection Act would amend the FLSA to require employers to keep records of non-employees who perform services, and would also provide for penatlties for misclassifying workers. 

Unions have tried to organize dancers, mostly without success, either due to lack of interest, or employer intimidation.  there is a unionized group of dancers in San Francisco, who belong to the Exotic Dancers Union, an affiliate of SEIU Local 790.  While a couple of NLRB decisions held that dancers were independent contractors, I think the current NLRB would be a lot more sympathetic to arguments that such workers are employees. 

It's too early to tell whether the dancers at Penthouse Executive Club will be successful in their FLSA claim.  Regardless of whether they prevail, it's heartening to see at least one group of workers standing up for themselves.    

Credit Checks as an Unlawful Practice

A friend of mine who is getting an MBA asked me the other day if he should be worried about credit checks from prospective employers once he graduates.  My friend has terrible credit, a result of a failed business he had in which he invested his own funds.  I'd like to tell him not to worry, but in this day and age of limited privacy, most employers insist on reviewing your credit prior to hire.

Under the Fair Credit Reporting Act, an employer is entitled to run background checks and credit checks if you sign an authorization.  Given the fact that an applicant isn't going to get the job unless she signs, most everyone signs the authorization. 

The argument in favor of credit checks is that someone with a bad credit history, or with lots of debt, may be tempted to steal or embezzle.  Assuming this is true -- and it seems dubious to me -- there are very few jobs these days that give employees unfettered access to cash.

Because of the tenuous link to employment, the Equal Employment Opportunity Commission is holding public hearings to discuss whether the use of credit history has a disparate impact on minorities and women.  Employment practices that have a disparate impact on protected groups are illegal unless they can be shown to be consistent with business necessity.  So, for example, requiring applicants at McDonalds to hold a college degree would be illegal because it would have a disparate impact on some minority groups, and there is no business reason for such a test.

Since some minority groups have lower credit scores than the general population, disqualifying applicants from employment based on a credit check has a disparate impact.  The question then becomes whether the tests are predictive of performance, or trustworthiness, and therefore are consistent with business necessity.  Proponents of checks say yes, while opponents say there is no correlation. 

Using credit checks as a blunt tool can't really be justified in my opinion, though it might be useful in certain contexts.  Dr. Michael Aamodt, an industrial psychologist, testified at the EEOC hearing that there is not much  research validating credit checks in the employment context.  Aamodt concluded that an applicant’s credit history should be considered only within the context of a thorough background check.

When my friend asked about background checks, I told him that he shouldn't worry, because in the corporate context he would be able to explain how his credit history turned south.  I'd like to think that a prospective employer would listen and take his explanation into account.  In this economy, however, I'm not so sure.

Pat Toomey's Policies for the Poor

This is rich, coming from the campaign of the candidate who wants to raise the retirement age, abolish Social Security and privatize it, opposes the National Labor Relations Act (or at least any NLRA reforms), opposed any form of health care reform, thinks that wealthiest one percent of Americans should pay the same tax rate as the poorest:

Unions "support Sestak because he has the same policies they have, because he supports empowering union bosses at the expense of workers,” said Nachama Soloveichik, Mr. Toomey’s spokeswoman.


Yeah, that's it.  Favoring policies that help working people doesn't help them.  It only helps "union bosses," whoever they are.  The solution to helping workers must be making sure they work longer, shifting the risk to them of their pensions, making sure they can't afford health care, and making sure that those with the most money pay the least proportional taxes.


These are just a few of the reasons why it's important to vote.

Vive le France

During the war in Iraq "France" became synonomous with "wimp" due to the French government's refusal to participate in the war.  Remember "freedom fries?"  It's  hard to reconcile the notion of a nation of wimps with the widespread strikes and protests against the French President's proposal to raise the minimum retirement age from 60 to 62.  We should be so wimpy.

Since September 7, when President Sarkozy announced plans to raise the retirement age, millions have taken to the streets in protest against the measure.  Trade unions organized the protests, and strikes shut down key industries in transportation, gas, trash, and other services.  Unions estimate the number of people involved in the general strike at 3.5 million, with govenment estimates at 1.2 million.  In a country of 62 million, those are huge numbers.  And, according to some polls, more than 70% of French citizens support the strikers.

Compare that to our own situation.  The age at which a person can receive a full retirement benefit from Social Security has gone from 65 to 66, and increases by two months a year until 2022, when the retirement age will be 67.  There were no protests, or even a political price to be paid for raising the retirement age.  And now the next potential Republican leader of the House is endorsing raising the age to 70.  Again, no political price to pay.

I'll save my thoughts on the wisdom of raising the retirement age for Social Security for another day.  Suffice to say that I am opposed.  All the talk of the system's insolvency is overstated, and is really a proxy for eliminating the system altogether.  A quick summary of some of the reasons why it will not "go broke" can be found here. The point here is that on an issue that affects nearly every working American, there is surprisingly little opposition, and certainly no calls for marching in the street, when politicians propose gutting or making social security harder to get.

Despite the French public's protests, it is predicted that President Sarkozy will get his way and the French will have to wait until they turn 62 to retire.  However, with large majorities opposed to the proposal, Sarkozy is expected to lose big in the political arena.  The strikers may not have mobilized such that the policy will be changed, but they certainly rallied the public.

The only thing more difficult than getting workers to unite and strike in this country is getting the public behind the strike.  When SEPTA workers shut down trains in Philadelphia a few years ago, the public was on the side of management, not the workers.  Of course, it is difficult to get the public behind you when the benefits you are trying to preserve are benefits the public doesn't have.  But with social security, when normal retirement age is raised to 70 (which I expect it will), everyone under 70 loses out. Just don't expect a general strike, or even a political firestorm. 

A Tale of Two Union Elections

It is not news that union density in the private sector has declined from 25% in 1975 to 7.2% in 2009. At the same time, union density in the public sector increased from approximately 24% to 37% in 2009. There are many reasons for this, but one of the reasons is that union elections are (or were) rarely contested in the public sector. When employers let employees decide for themselves, rather than making threats of plant closure, not to mention threatening or actually firing employees, employees most of the time choose to unionize.

Two recent union drives illustrate the point. UFCW Local 1776 recently had two election drives that featured similar workforce demographics, similar size of bargaining unit, and similar geographics. In one campaign, the employer threatened to close the plant if the union won, hinted at deportation of immigrants, and ran a hard campaign. The union still won the election, though by a slim margin – and the employer is challenging the election through meritless challenges.

The other election took place at JBS meatpacking plant in Souderton. For this campaign, the union secured the employer’s agreement to be neutral during the election, and agree to a quick election. Employees voted overwhelmingly for the union by a margin of ten to one. As Local 1776 President Wendell Young, IV, pointed out, the outcome of the election “shows that when workers get a free and fair process, they choose union representation.”

Employers argue that they have to run anti-union campaigns so that workers have all the information they need to make an informed choice. I’ve always found this somewhat offensive and patronizing. Employees are perfectly capable, particularly in this day and age of the internet, to make their own choice; additionally, there are always at least some employees opposed to unions who make their views known.

I have more respect for employers who are at least honest and say the reason they want to defeat a union is because they don’t want a union interfering with the way they run a business.

In this era of declining union density, organizing more than a thousand workers at a plant counts as a major win. And the win is not only for the workers, it is also, as Mr. Young said, “better for everyone, workers, the company, and the larger community.”

Shifting The Cost of Health Care to You

One thing I never understood about the fierce opposition to health care reform is why someone would be against something that could help them financially.  Increasingly, employees are being forced to bear the cost of their own health insurance, as more and more companies lay the burden of increased premiums on their employees.

The Kaiser Family Foundation, in its 2010 Employer Health Benefits Survey reports that while the total jump in premiums last year was 3%, employee contributions rose 14%.  Workers are now paying, on average, $4,000 a year towards their health insurance.  According to the report, "since 2005, workers’ contributions to premiums have gone up 47 percent, while overall premiums rose 27 percent, wages increased 18 percent, and inflation rose 12 percent."  Additionally, many employers raised the deductible workers have to pay before they see any help from their employer.  Currently some 27% of workers have to pay for the first $1,000 for coverage before they receive anything from their health plans.

Given the dramatic increase in premium share, along with the low wage increases, many employees are worse off now than they were five years ago.  And, it isn't getting any better.  Employers know that in this economy they can force employees to accept worse coverage because many employees are afraid of losing even more.

By the 1940s, most industrialized nations had begun providing health care to its citizens.  In America, we ended up with employers providing that insurance, in part because wage caps during WWII led employers to give compensation to workers in other forms, such as health care benefits.  Employers are now reneging on their end of the bargain and, ironically, are also the loudest opponents of health care reform.

The massive shift in risk to employees for their health care and pensions has had no consequences for employers, corporations, and those who advocate for workers to bear the cost of benefits that employers used to provide.  Oddly, it has been Obama and those who want to protect pensions and enact reforms that would lower premiums that have been subject to the rage and fury of the Right.  I still can't help wondering though why a worker paying $4,000 a year for health insurance plan with high deductibles would buy into the rage.

A Featherman in City Hall?

Normally I wouldn't post a link to an op-ed article explaining why Philadelphia needs a Republican mayor.  But the author of the piece is my cousin, John Featherman, and he himself is running for mayor of Philadelphia as a Republican.  It's an extreme longshot -- the last time Philadelphia elected a Republican mayor was in 1952 -- but Sam Katz almost won as a Republican in 1999, so who knows?  Featherman makes the case for a GOP mayor here.

 

Mott's Workers Return

Striking workers at Mott's returned to work this week after a 16-week strike brought on by Mott's insistence that employees accept wage and benefit cuts even though the company was not facing any financial difficulties.  Instead, the company took the position that the workers simply made too much compared to other workers in the area.


While the Retail Workers Union is portraying the strike as a victory, and it is in certain ways, the settlement shows just how courageous employees are who do strike.  Workers were out on the picket line for 16 weeks.  And at the end of it, what did they get?  They didn't get raises.  They didn't get pension increases.  They didn't get better health care.  Instead, the barely managed to preserve what they had before their contract expired.   Prior to the settlement Mott's was insisting on a pension freeze for employees, a $1.50 per hour pay cuts, increased health care contributions, and a smaller match for employees' 401(k) plans.

After 16 weeks workers did manage to stave off cuts.  They returned to work for a wage freeze for three years, elimination of the pension for new workers, a smaller contribution to employees' 401(k) plans, and increased copays for medical insurance.  In other words, employees had to strike to barely preserve what they had and take smaller benefit cuts than the company's original proposals.

The disturbing thing about the Mott's strike is that the company insisted on keeping workers' wages and benefits down for no other reason than they thought they could.  The company's justification for its draconian proposals was not that it needed concessions to stay competitive, or because it was losing money -- it couldn't really, since its corporate parent made $555 million last year.  No, Motts' justification was that it thought its workers made too much money relative to the labor market in the Rochester area.

Driving benefits and wages downward hurts America and hurts our economy.  No wonder we're in a recession.  (Despite the economists proclamations to the contrary, it still feels like a recession regardless of whether GMP is up.)  Without disposable income or easy sources of credit, people can't buy goods and products that keep the economy buzzing along.  We've seen stagnant wages for working people for close to thirty years, and the trend does not look promising.

We should salute the workers at Mott's for their stand against concessions and for striking for what's right.  Let's be honest about the victory though -- at the end of the day the winner here is probably Mott's, which managed to impose wage freezes and benefit cuts on its employees.

Boycott Mott's

A common theme during negotiations for a collective bargaining agreement is the employer crying poor mouse and asking for concessions.  Sometimes the need for concessions is genuine, as in the deal struck between the Teamsters and Yellow Freight in which he union agreed to concessions so the company could avoid bankruptcy.  A more disturbing theme is now emerging:  profitable companies asking workers for concessions for no other reason than they think they can get away with it.

A perfect example of this is taking place in Rochester, New York, at a Mott's apple juice plant.  See strike article.  Dr. Pepper Snapple Group, Mott's parent company, made a billion dollars last year, with $555 million in profits.  The price of its stock doubled.  The company's CEO made $6.5 million dollars last year.  And the plant itself is profitable.  Yet Mott's is demanding that workers there give up $1.50 an hour in wages, and agree to a freeze in their pensions.  The company's rationale is not that it is suffering, or needs the cuts to stay competitive.  No, the company's rationale is that workers at the plant are overpaid compared to other workers in the Rochester area.  The average wage at Mott's is $19.00 an hour, while the average wage in the area is $14.  Mott's bet that workers would accept the wage cuts rather than strike.  Instead, workers went on strike, and have been on strike for more than 90 days.

The company is not apologizing for trying to squeeze employees at the plant, some of whom have worked their whole lives there.  It has taken out newspaper ads blaming workers for striking despite the fact that they make more than the average wage in Rochester.  This tactic has resonance in these trying times.  Some in Rochester are resentful that employees at Mott's make $19 an hour while they make less, sometimes much less.  These folks miss the broader point that the union is trying to make:  we should not be setting wages at the lowest possible point -- instead we should be trying to bring everyone's wages up.  Also, higher union wages tend to pull other wages up, since non-union employers tend to pay more if there are other, higher paying union jobs in their sector.

What Mott's is really doing is breaking a contract.  Not the CBA, but the social contract.  After World War II there was a social contract between corporate America, workers, and the unions that represented workers.  Employees agreed to work hard and help make corporations profitable.  In return, corporations paid employees well and invested in pension plans that allowed them to retire with dignity.  Sometime in the 80s, probably after Reagan fired all the air controllers who went on strike, the contract started to erode.  The paradigm shifted so that the number one priority of corporations became increasing stock prices.  With executive compensation tied to stock prices, since many of them hold stock options, maximizing stocks at the expense of workers and actual humans became the number one priority for some.  The overall effect has been a shift of wealth from the middle and lower classes to the upper classes.  Viva Wall Street!

The strike at Mott's involves only about 305 workers.  The bigger struggle, however, implicates all of us.





You have to admire the men and women of Mott's who chose labor action rather than accepting pay cuts when the company is making money hand over fist.

The Most Conservative Court Ever?

An old academic joke has it that "sociology is the study of the obvious."  The same could be said for this article, which reviews some recent studies and concludes that Court Under Roberts is Most Conservative in Decades

The article points out that the Roberts Court is the most conservative since at least 1969, when Chief Justice Burger ushered in a reign of legal conservatism.  In fact, with the exception of the Warren Court from 1953 to 1969, the Supreme Court has been a markedly conservative institution, favoring employers over employees, prosecutors over criminal defendants, corporations over the little guy.  Somewhat frighteningly, the article says that four of the six most conservative justices since 1937 are now sitting on the Court.

This isn't news to those of us who represent employees and unions.  The Court has been unremittingly hostile to employees, and generous to employers.  Curiously, when it comes to "reverse" discrimination, the Court has been more favorable to employees, as last case of  Ricci v. City of New Haven demonstrates.

Unfortunately, the conservative trend is unlikely to change, even though Obama selected Sotomoyor and it looks like Kagan will be seated.  That is because Sotomayor and Kagan are both replacing "liberal" justices.  The biggest difference on the Court has been the selection of Alito, who replaced O'Connor.  I would hardly call O'Connor a liberal.  However, she was often the deciding vote, and due perhaps to her years of experience as a politician, less given to ideological extremes then the junior justice from Pennsylvania.


The right has for years vilified liberal judges, accusing them of "judicial activism" and undermining the will of the people.  In truth, the Roberts Court has been very active, overturning Congress, overturning Supreme Court decisions it doesn't like, and ignoring the concept of stare decisis when convenient.  The irony is that what passes for judicial liberalism these days is actually quite moderate.

There is hope that the Supreme Court will tilt more liberal if Obama gets another pick.  I wouldn't count on it though.  One major difference between the Republicans and Democrats is that when the Republicans pick a Supreme Court judge, they pick one that is, well, conservative and proud of it.  Everyone knew that Roberts and Alito were full-fledged, card-carrying Federalist Society conservatives.  Democrats, on the other hand, make cautious picks of non-ideologues who they think will be confirmed without a fight.  Sotomayor is a middle-of-the-road judge who is very "judicial," but hardly a counter to Scalia and co.  It's hard to tell with Kagan.  She's been a career government-type.  I'm hopeful she will turn out to be reliably liberal, given that her brother is a strong union supporter, according to the Village Voice.  Marc Kagan Article

The mistake the Democrats keep making is that it doesn't matter who they appoint, there will be Republican opposition.  Next time (if there is a next time) Obama should name a flaming liberal or radical to the Supreme Court.  Let's have a real debate in Congress about the nominee and his or her judicial philosophy, rather than the bloodless, passionless play that we currently have, where the nominee tries to kiss everyone's ass to avoid controversy.  And when that pick is rejected, put up another liberal, then another until one is passed.  Unless we do, then the Court will creep continually to the right, like the rest of the federal judiciary.

Profits Up, Workers Not So Much

The New York Times reports that many companies are increasing their bottom lines -- but aren't going to be recalling laid off workers anytime soon. Companies Find Surging Profits in Deeper Cuts.  That's because companies know that they can get away with making people work more without paying more.    Exhibit A is Harley Davidson, where the company reported a 71 million dollar profit last quarter, triple from the year before.  Despite the profit, none of the 2,000 jobs cut last year are coming back.

Harley perfected a method of collective bargaining that companies have been using since the recession started:  threaten to move jobs to other states, or countries, unless workers agree to draconian wage cuts, benefit cuts, and work rules.  In this climate of fear, many workers agreed.  Employees aren't stupid though; when they see reports of record profits at a time when they have been asked to sacrifice, they are resentful and unhappy.

There is no doubt that many companies have had to restructure and have legitimately reined in labor costs in order to survive.  There are many more, however, that have used the recession to get what they always wanted but couldn't when the economy was better.  But Henry Ford recognized long ago that unless people have money, they can't buy a company's products.  When other companies follow Harley's lead and layoff workers in order to maximize profits, they are creating an America in which people can't afford to buy an expensive motorcycle.  And without more consumption, the economy will continue to lag.

Big Brother Reads Your Facebook Posts

Who isn't on Facebook these days?  The site has something like 500 million users, and is growing rapidly.  There have been 4 billion tweets posted on Twitter.  Posting a picture of yourself on Myspace or Facebook with a drink and tabbing it "Drunken Pirate" might make your friends laugh.  But it could also get you fired, as this Lancaster teacher found out.  Drunken pirate.  Employers are increasingly searching the web to monitor employee activities while they are off duty, and firing them if they don't like the activity.  As Molly DiBianca notes in her blog, one woman was fired for her anonymous sex blog after a supervisor searched the internet and found an unrelated Twitter account that revealed her name.  Sex blogger fired

You might think you are safe using Facebook -- after all, it has privacy settings so only your "friends" can see what you post.  But who knows what those friends will do with the information?  I had an arbitration once where the employer brought in a bunch of employee posts that her workplace colleague and Facebook "friend" had given the employer.


Even if your friends don't rat you out, employers can be very aggressive in litigation, and may subpoena all Facebook postings, and also subpoena your friends to get to your postings.  Management lawyer Eric B. Mayer gleefully advises employers in this blog post all the different ways to get to your private information, from subpoenas to figuring out who your FB friends are and seeing if they are work colleagues, to asking for sanctions for spoilation.  Mayer post here.

Forewarned is forearmed.  The basic rule for FB, as well as all internet activity is not to put anything out there that you wouldn't want your grandmother to see.  Big brother is watching.

War on the Poor

With the seating of Carte Goodwin, West Virginia's new senator, and crossover Republicans Collins and Snowe, the Senate finally passed a bill extending unemployment benefits.  What is remarkable to me is not that the despicable Republican minority would rather see people starve then pass legislation that makes social and economic sense -- that is to be expected.  What is remarkable is the complacency with which we have accepted an unemployment rate of 9.5%.  And this figure does not measure underemployed, distressed, and underemployed Americans.  That figure has been estimated as 20% of the workforce.


At the same time unemployment has been rising, so have corporate profits, hence the term "jobless recovery."  Meanwhile, the gap between the wealthiest Americans and everyone else continues to grow; one recent study shows that the gap in after-tax income between the richest 1 percent of Americans and everyone else is the highest it's been in 80 years, with the gap tripling in the past three decades.  CBPP study.  The study points out that one recent reason for the increase is that the Bush tax cuts benefited the top 1%, with the top earners getting the lion's share of the tax cut benefits.

Amazingly, Republicans are pushing for extending the Bush tax cuts at the same time they are pushing against extending unemployment insurance.  It's hard to say how this is anything but a declaration of class warfare:  keep the cuts that benefit the wealthiest Americans, and screw those who need help the most.  Even the venerable Alan Greenspan thinks that the Bush tax cuts should lapse, and not be extended.  Greenspan comments.  Unlike the tax cuts, extending unemployment benefits is generally accepted as a stimulus to the economy.  The cynic in me says that the only reason the Republicans are opposed to something that will ease suffering and is good for the economy is that they want to keep unemployment high through November to help their electoral chances.

Our bland acceptance of high unemployment and underemployment, the growing gap between rich and everyone else, and the shrinking middle class is exactly the thing that will prevent any meaningful change in our social policies.  The times of progressive policy in this country has come during times of social unease, rioting in the streets, and revolution in the air.  Think of the 30s, when there were sit-down strikes, violent encounters with the police, and active Communist organizers.  Or the 60s, when the streets were on fire and millions marched on Washington.  Major legislation was passed in those decades that benefited all Americans.  Compare that to now, when people are mostly concerned over the latest dance star, sports, and which C-list celebrity is getting kicked off which island.  Until we turn our attention elsewhere, it is likely that the status quo will continue.

Blue Collar Glory: Matthew Crawford's "Shop Class as Shopcraft."

As a lawyer representing labor unions and working people, I am often struck by the fact that many of my clients are better off than some lawyers and professionals I know.  Some workers I represent make close to six figures (albeit by working 80 hour weeks and collecting overtime), and some are able to retire at age 55 with a guaranteed pension.  In contrast, most lawyers and professionals I know are still paying off student loans, and there is no defined benefit pension in their  futures.  Some of these same workers are happier in their work lives as well.  Unlike some white collar workers, who are salaried workaholics, these folks make things and fix things from 9-5, then at the end of the day they are done -- free to have a beer and forget about work.  There is always another project for some professionals, and every lawyer I know has at some point woken up in the middle of the night wondering if he screwed something up -- a filing deadline, an argument missed in a brief.

Matthew B. Crawford explores some of these issues in his brilliant little book "Shop Class as Soulcraft," which recently came out in paperback.  Crawford's basic argument is that blue collar work in which people make things has been devalued, and white collar work glorified, as optimists proclaim that "knowledge workers" are the way of the future.  Yet as Crawford points out, many white collar jobs are soul-destroying endeavors in which nothing is produced, and there is no real way to measure productivity.  Hence the rise of a managerial class whose job it is to act as coaches and spout corporate-speak platitudes, create "teams" so no one is individually responsible, and build corporate "brands."  Since knowledge workers aren't really producing tangible things, Crawford notes, the evaluation of what each person contributes is vague and opaque, with the consequence that these workers are judged subjectively.

Crawford contrasts these workers with blue collar folks like motorcycle mechanics or carpenters whose work is objectively measured -- a door is either level or it isn't; valves are either set right or they aren't.  In Crawford's tale, pride of craftsmanship equalizes worker and boss in a certain way because a craftsman has something objective by which to judge his contribution to a project.  The boss respects a worker who does the job right, and a worker has pride of ownership.

Crawford has a Ph.D. and started out at a think tank, only to start his own motorcycle repair shop.  He beautifully details how he rebuilt car engines as a kid, and how he fixes motorcycles and fabricates  motorcycle parts now.  It's enough to make me wish I still had my 1966 Volkswagen bus and a copy of John Muir's "How to Keep Your Volkswagen Alive" manual.

Crawford is on to something here, but the tale is too simple.  Yes, too many people go to college who might be better served going out and learning a trade.  And yes, if you make something you know if you've done it right in an objective sense.  But not everyone can be a motorcycle mechanic at a boutique shop, and not everyone can take his knowledge and become a craftsman.  Most people who go to trade school end up not owning their own little businesses but working for corporations where they are, alas, subject to the petty prejudices of their supervisors, not to mention the whims of superstar CEOs who want to build up the bottom line at the expense of workers.  Some of the saddest cases I run into are skilled workers who, at age 40 or 45 or 50, have been laid off and have no real prospect of every reaching the level of wages and benefits they had when they were laid off. 

Take Harley Davidson, the iconic motorcycle manufacturer.  Harley used to employ about 2,200 workers at it York, PA plant.  Harley essentially had two plants at York, a modern assembly line that cranked out new bikes, and an older "legacy" plant.  At the legacy plant some assembly work was done.  However, the legacy plant also employed highly skilled workers who made custom parts, fabricated parts for old Harleys, and could make anything that Harley needed to make.  If someone needed a part for a 1948 Panhead and it couldn't be found, the legacy plant could make it.  The workers in the legacy plant were highly skilled fabricators, mechanics, and craftsmen in every sense of the word.   

In 2009 a new CEO came in, who decided that Harley wasn't profitable enough.  Even though the union at Harley demonstrated that Harley could save money by keeping the legacy plant open, the CEO closed down the legacy plant to concentrate on new bikes.  Some 400 workers took buyouts, and another 500 have been laid off, with another 500-600 layoffs targeted.  The laid off workers face the prospect of a grim economy, with faint likelihood of making the kind of money and benefits they made at Harley.  These folks have skills, but there isn't much demand for their skills in an America that doesn't make things anymore.

Crawford's theory is nice, and I don't disagree with him.  However, Crawford tends to glorify blue collar work and denigrate white collar work, when the reality is more complex.  His argument, that pride of craft and teaching people trades is better than sending everyone to college makes some sense.  However, in some ways his theory is the equivalent of those on the right who glorify "entrepreneurs" and think that every economic problem can be solved by creating small businesses.  Nonetheless, the book is excellent, well-written, and espouses a view that needs to be reckoned with.

Domestic Partners and the FMLA

As everyone knows, the FMLA gives employees 12 weeks of unpaid leave for a for the birth, care, or adoption of a child, to take care of a spouse, child, or parent with a serious health condition, or to take of her own serious health condition.  One recurring question that has come up is what is a "child" for purposes of getting leave under the FMLA. 

When the FMLA was enacted, Congress was aware that there are many non-traditional families, and many children who are cared for by someone other than a biological parent.  By some estimates, more than 6.5 million children being raised by grandparents or other relatives.  Congress therefore adopted a broad definition of child under the act to include a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."  I love the term "loco parentis." which means someone who has put himself in the shoes of a parent by by assuming the obligations of parenthood without formally and legally becoming a parent.  I love the term because in Spanish "loco" means "crazy," which descripes sometimes what it is like being a parent. 

In a recent interprative letter from the Department of Labor, the Secretary of Labor clarified that the term in loco parentis is to be read broadly, taking into account the reality that, in essence, it takes a village to raise a child.  DOL Interpretive Letter The letter clarifies that in order to be considered a parent, one has to have either day-to-day responsibilities over the child, or provide financial support, but not both.  So, for example, if a couple divorces and both spouses remarry, both parents and both step-parents would be entitled to leave.

What commentators and the blogosphere have focused on in the letter is its explicit statement that same-sex partners raising a child together are both entitled to FMLA leave to adopt the child or care for him if the child has a serious health condition. 

While to me it is obvious that a same-sex partner would stand in loco parentis with regard to a child both partners are raising, some have attacked the letter as "advancing the homosexual agenda."  The Baptist Press quotes one Tony Perkins as saying the letter is an unconstitutional attack by the Obama administration on .... well, something.

I can't figure out why someone would be opposed to giving leave to someone to take care of a child, regardless of the orientation of the couple raising the child.  Shouldn't we be encouraging more child-centric policies?  FMLA leave is still unpaid, so it's a hardship for many people to take leave.

This interpretative letter is a start as far as extending benefits under the FMLA goes, yet the law does not go far enough.  As written, a domestic partner can take care of the child the partners are rearing together -- but can't take care of the partner.  That's because the FMLA gives the right to take unpaid leave to take care of a child, spouse or parent.  This means that the millions of same-sex couples who are legally prohibited from becoming spouses are also prohibited from taking FMLA leave to take care of their partner if he or she becomes sick.  It's hard to see why a domestic partner should get to take care of his child, but not the partner with whom he is raising that child.

The Supreme Court's Amnesia and New Process Steel

Today the Supreme Court issued the New Process Steel decision, which invalidated something like 600 National Labor Relations Board cases that were decided by a two member NLRB panel.  Link to Supreme Court decision The decision is remarkable not for the hypocritical reading of the governing statute by a group of justices normally devoted to the plain meaning of a statute, but for the complete lack of appreciation for real world issues.

The NLRB is composed of five members, have staggered terms and are appointed by the president subject to Congressional approval.  Politics can delay appointments for months, or even years as in the case of Craig Becker.  Towards the end of 2007 the Board found itself down to four members and one vacancy, with the expectation of another two vacancies.  In anticipation of only having two members, the Board delegated its authority to three members.  The Board believed (relying on legal opinions) that this delegation would permit two members to act as a quorum if and when vacancies reduced its membership to two.
Because the Republicans would not approve the appointment of any new NLRB members, the Board was composed of two members until this year, when Obama finally recess-appointed two members.  Thus, during a two year period a two-member Board issued approximately 600 decisions.  One of those decisions was challenged on the basis that the NLRB lacked the authority to delegate its powers to a two-member quorum.

The Supreme Court agreed that the NLRB lacked such authority in a 5-4 decision written by Stevens and joined by Scalia, Thomas, Roberts, and Alito.  The actual decision turns on statutory interpretation.  Suffice it to say that although the majority thought that the NLRB's reading of the statute was "permissible," it nonetheless held that Congress did not intend to permit the Board to act with two members.  Bizarrely, the Court acknowledged that two members could render decisions on behalf of the entire Board, but not when one of the members was "vacant."  As the dissent pointed out, the plain language of the statute authorized the delegation.  The dissent also had it exactly right when it noted that the Board through "the promotion of industrial peace."

This is the bigger picture that the Roberts/Scalia block on the Supreme Court can't or won't get.  The National Labor Relations Act, which the NLRB interprets, was designed to minimize industrial strife and place workers and employers on more of a level playing field.  The NLRA affects real lives, real people, and it is against that backdrop that the statute should be interpreted and enforced.  The New Process Steel decision is only the latest in a long line of Supreme Court decisions that seem to have forgotten the purpose of the NLRA.  Even the Democratic appointees on the Court now are mostly pro-business, as can be seen in the Court's willingness to favor employers over employees, corporations over people, and business over all.  This is what distinguishes the Roberts Court, and what is reflected in the New Process decision.

Temple Nurses Win Another Victory

Last March nurses at Temple Hospital went on strike for a month to protest, among other things, the elimination of tuition benefits, a "gag rule" that prevented nurses from criticizing the hospital, understaffing issues, and of course wages and benefits.  It's rare that workers these days will strike.  It's rarer still that they win -- After a month on the picket line the strike settled, with the tuition rule modified and the gag order lifted. 

This week the nurses won another victory, when the Pennsylvania Department of Labor and Industry found that the nurses were locked out, rather than strikers.  The decision means that the nurses will receive unemployment benefits for the weeks they were out on strike.

Under Pennsylvania's unemployment law, strikers receive no unemployment benefits, while employees who are "locked out" do.  The distinction comes down to who altered the status quo.  If an employer changes the terms and conditions of employment it has changed the status quo, and therefore workers are entitled to benefits.

In the Temple case, the hospital changed the status quo because it unilaterally altered the tuition benefit before the workers walked out.  By doing so, the Unemployment Board found that it had altered the status quo and essentially caused the strike.

The decision is doubly painful for Temple because it will be on the hook for the payments.  Most employers pay unemployment insurance to pay for unemployment claims.  Some larger employers like Temple, however, are self insured, which means that Temple will have to shell out something like a million and a half dollars.  That's not all Temple had to pay for the strike.  It is estimated that Temple spent something like 40 million on strike replacements during the strike.  Of course, it could have kept the tuition reimbursement in place and shown workers some respect by not insisting on a gag rule in the first place.  Seems like an expensive price to pay for a couple of items that didn't cost the hospital much in the first place.

BP and Massey Energy -- The Perils of Government Deregulation

If there is one thing we can learn from the BP oil spill disaster and the Massey coal mine disaster (not to mention the stock market mess), it's this: the move away from government regulation and the increased dependence on companies to police themselves is itself a disaster.

Since at least the 1980s a steady chorus of anti-government propaganda from the Right has resulted in a weakening of government regulations and laws, whether through decreased funding, relaxing of safety regulations, or increased exemptions from safety rules.  During the Bush years, the foxes guarded the henhouse, as industry insiders were given top government positions regulating the industries from which they came.  All of this contributed to the disasters we now face.

BP, for example, took advantage of exception after exception from safety rules when setting up its deep water rigs.  The feds were mostly absent as BP set up its deep water rig in the Gulf of Mexico, even as BP's own engineers were questioning the Company's methods.  Government safety inspections of deep water wells were mostly nonexistent, consisting mostly of  "helicopter visits to offshore rigs to sift through company reports of self-administered tests."  http://www.nytimes.com/2010/06/06/us/06rig.html?pagewanted=2.  In some cases, oil officials filled out safety reports in pencil, which government inspectors then filled out in pen and turned in.  NY Times Report. 

Not only is the government hamstrung by the cozy relations between the regulated and the regulators and the decrease in funding, but BP and companies like it have the resources to simply outspend and outgun the government.  BP, with the worst safety and environmental record by far of any oil company operating on US shores, has paid something like 700 million in civil penalties and fines the past in the past few years.  While that may seem like a lot, it is merely the cost of doing business:  in 2009 the company reported profits of nearly 14 billion dollars, and nearly 25 billion in 2008.  In relative terms that's like the average Joe paying $100 for a traffic ticket -- does that really deter anyone?

Massey, likewise, took advantage of lax governmental enforcement and looked at fines as another way of doing business.  As I reported in an earlier post, Massey energy, owner of the Upper Big Branch mine where dozens of workers were killed, paid millions in fine and had a horrendous safety record.  http://phillylaborlawyer.blogspot.com/2010/04/more-on-masseys-mine-disaster.html.  It apparently concluded that cheating on safety was worth the risk of paying small fines. 

What does any of this have to do with the labor movement?  Well, labor has been a canary in the coal mine as far as government deregulation and lax enforcement goes.  Big business figured out  years ago that the lack of any meaningful enforcement of the National Labor Relations Act means that companies can simply disregard the law during organizing drives without any real consequences.  After all, if you get caught violating the NLRA, the result most of the time is that the company has to post a notice saying it violated the Act.  So what?  And if an employer unlawfully fires an employee during an organizing drive, all it has to pay is the back pay of the employee -- minus the money the employee could have or should have made.  Without any real consequences, companies will take risks.  And without any meaningful government regulation or enforcement, bad actors like BP and Massey will push the envelope in the name of profit, safety and the environment be damned.

Getting Pumped for Health Care Reform

Fifteen years ago when my son was an infant  his mom wanted to keep feeding him breast milk.  She was working at the time, and we bought a little pump for the purpose.  Unfortunately, she was afraid her employer would think it was weird, and so she had to sneak around as if having a cigarette in the restroom.

Women will not have to sneak around any longer to express milk. As part of the new health care bill the Fair Labor Standards Act was amended so that employers with more than 50 employees are now mandated to provide certain benefits to women who wish to breastfeed or pump.

First, employers must provide "reasonable breaks" for women to express milk for infants.  The breaks must be reasonable both in terms of time, and in terms of number of breaks.  Second, the employer must give women a private location in which to express milk.  This private location has to a location other than a restroom.  Although the breaks must be given, there is no requirement that the breaks be paid.

Several states, including California, Colorado, Illinois, and New York already have breastfeeding laws on the books.  The new FLSA amendment provides that if an employee resides in a state with a more generous law (for example, paid breastfeeding breaks), then the employee is entitled to whichever law is more generous, state or federal.

In the end expressing milk was too much for my then-wife.  It was less an issue of privacy and more an issue of the hassle of pumping, preserving, and transporting the stuff home.  It's a comfort to know, however, that those who want to express themselves can.  La Leche League rejoice.

Is Supreme Court Nominee Kagan Good for Unions?

The first question my grandparents always had on any public policy issue was always "is it good for the Jews?"  I have the same question for Obama's policies and nominees, replacing the word "Jews" with "union."  Obama's pick to replace Justice Stevens on the Supreme Court, Elana Kagan, is definitely good for the Jews, bringing the Court's complement of Jewish judges to three.  But is she good for unions?

So far it's hard to tell.  Kagan has never been a judge, so there are no written opinions to go by.  And, she does not have other writings  outlining her philosophy on labor, or any other issues for that matter.  She is, as some have noted, a bit of a cipher.  Labor leaders are cautiously supporting Kagan, probably hoping for the best.

One hopeful sign comes from the Village Voice, http://blogs.villagevoice.com/runninscared/archives/2010/05/elena_kagan_and.php,which points out that Kagan's brother, Marc Kagan, was a labor leader and reformer in the Transit Workers Union in New York.  Kagan's brother, who is now a teacher, recently wrote a letter in the Civil Service weekly Chief Leader extolling the virtues of unions in fiery, passionate language:

"Here's a heretical thought: the actual purpose of unions is to improve workers' lives by challenging the free market: to win a higher than "market" wage, to make it hard for the employer to change working conditions or fire the higher-paid worker. We shouldn't hide these ideas under a rock like we're ashamed of them; just the opposite. When unions won the 8-hour day, or the weekend, or pension plans, unions defended the idea that working people's lives and rights were socially more important than employers' profits and rights. And we said that those victories would tend to spread, even into nonunionized sectors, and generally make people's lives better. And that was true, for decades.

"Today we are playing this movie backwards. As people in the nonunion sector have faced big roll-backs in wages and benefits, we hear them complain that unionized workers should also "give back." It's an indication that we have, at least temporarily, lost the battle of ideas in this country, that we can't successfully explain to our fellow workers that it is in their interests too if we are able to hold the line somewhere, rather than engage in a frantic race to the bottom."

This type of rhetoric is rarely aired in public these days.  While we certainly can't expect Kagan to publicly embrace such sentiment, at least we know that she has family members who understand unions, embrace unions, and are passionate advocates of the labor movement.

Sexting, Texting, E-mail and More

Tune in tonight to hear my colleague Amy Rosenberger discuss workplace privacy issues at work:
TONIGHT LIVE at 7pm: "Sexting, Texting, E-mail and More: Privacy at Work"

This should be an excellent show and a good way to catch up on how new technologies are affecting the workplace

The Departure of Andy Stern - Thank You and Good Night!

Andy Stern's sudden announcement that he was resigning this week as President of the SEIU caught nearly everyone by surprise, perhaps even Sten himself, as news of his resignation was leaked by union sources prior to the official announcement.  The media-savvy Stern issued a video of himself later in the week announcing his resignation.

Like George Costanza saying "thank you and good night" and going out on top, Stern is in many ways at the apex of his career.  He has Obama's ear, has increased membership in the SEIU, and is probably the most recognized name in labor next to Hoffa.  Yet Stern also has been a controversial, polarizing figure -- taking his union out of the AFL-CIO, raiding UNITE HERE and engaging in rough and tumble union infighting.  His sudden departure also demonstrates what many critics  have said, that Stern's number one priority is Stern -- his mid-term departure leaves a power vaccum and will inevitably weaken the union while the executive board fights over his successor.

Stern has also been accused of being a "top-down" labor leader, negotiating deals with employers and then letting members in on it.  A perfect example of the top-down view can be seen in this anecdote.  A friend told me yesterday that after hearing Stern on the radio she wanted to get information about forming a union at the nursing home where she works.  She went on the SEIU website to find out who to contact and how to organize a union.  While the website was full of laudatory press on Stern, political announcements, and self-congratulation, she could not find any information on how to actually contact a local union in her area that could help her out, or any helpful information about organizing.  That, in a nutshell, is the problem with the SEIU as well as most other large international unions -- they are focused more on Washington DC politics, themselves, and not enough on workers in the field.

More on Massey's Mine Disaster

As the New York Times reports, the Upper Big Branch mine owned by Massey had a serious history of safety violations - and workers were evacuated three times in the past two months for dangerously high methane levels:
http://www.nytimes.com/2010/04/07/us/07westvirginia.html?hp.  Naturally Don Blankenship, the CEO of the Company denies that there were any issues, and, incredibly, shifts the blame to the government, claiming that "the Mine Safety and Health Administration would never have allowed the mine to operate if it had been unsafe."  He also claims that safety violations are nothing more than a normal part of the mining process.  Huh?  The MSHA levied massive fines against this mine, fines which the company fought and appealed at every turn.  What Blankenship really means is that worker safety - or lack thereof - is simply a cost of doing business for the company.  With 2.9 billion in revenue in 2009, what's a few million in fines per year for safety and environmental violations?

W. Va. Mine Disaster -- An AvoidableTragedy?

The mining disaster at the Upper Big Branch coal mine in West Virginia is a reminder that there are still dirty dangerous jobs in this country where you might clock in to work, then clock out permanently.  Particularly when your employer is more concerned with profit than safety.

Massey Energy, which owns the non-union mine, has a history of violations for not properly ventilating methane gas -- last year it was fined $382,000 dollars for ventilation issues.  The cause of the blast at Upper Big Branch has not yet been determined, however, in any mine explosion methane is almost always the culprit.

The CEO of Massey, Don Blankenship, is virulently anti-union and presided over a bitter drawn out strike at other Massey facilities in 1985.  The company has had some record making profits.  It also holds some records for largest fines for safety and environmental violations:  In 2006 it paid a record 4.2 million dollars in civil and criminal penalties after two miners died and it was found that safety violations contributed to their deaths.  In 2008 it paid a 20 million dollar settlement for violations of the Clean Water Act.  Naturally, Blankenship thinks that global warming is a fallacy cooked up by crazies.

It's too early to tell what happened in West Virginia that possibly killed  25 workers  One thing we do know is more concerned with profitability than safety and the external costs of its operations on the rest of us.

http://2politicaljunkies.blogspot.com/2010/04/massey-energy-hundreds-of-safety.html
http://www.dailykos.com/story/2010/4/5/854434/-at-least-7-dead,-19-missing-after-W.-VA-mine-explosion

Even an Ass Finds Truffles Sometimes

Every so often I win a case that makes what I do worthwhile.  Today I got an unemployment decision that made me feel like a million bucks.

The employee in the case was laid off, then the employer hired him back on as an "independent contractor" for another couple of months to finish a project.  All of the employee's working conditions were exactly the same after the layoff as before, except he got a 1099 and no benefits.

The man filed for unemployment and received it -- but then got cut off when the employer claimed he was an independent contractor, and therefore not eligible for benefits.  The unemployment office also told him he would have to pay back the unemployment he had received.  He appealed, but did not send his appeal certified or get a proof of mailing.

When he came to our office the employee was panicked that he would have to pay back the money and lose benefits.  He is older, and has not been able to find employment.  He said he would have to move in with his grown children if he could not get benefits.

At the hearing the employer showed up and, miraculously, supported the employee.  The problem for the employee was that his appeal was untimely because the unemployment office had not received it.  Under the law, that should have been it.  Luckily, the unemployment referee allowed me to present the case on the merits as well as on the timeliness issue. 

The decision came in this weekend and the employee won.  On the timeliness issue, the referee stretched to find he had filed his appeal on time, due to the testimony he gave about mailing it and so forth.  And on the merits she found that he was an employee, not an independent contractor.  I am sure she stretched on the timeliness issue because on the merits it was so obvious that he was not an independent contractor.




The case gave me satisfaction because it was such an obvious injustice and because the only reason he would have lost is procedural.  To mix metaphors and sayings, the law is an ass, but sometimes even an ass finds a truffle.

Obama Grows a Pair

Obama announced yesterday that he is making 15 recess appointments during the Easter recess. Obama Bypasses Senate Process, Filling 15 Posts - NYTimes.com. One of the appointments is Craig Becker for the National Labor Relations Board. Republicans, naturally, are having a hissy fit, claiming Becker is some kind of radical.

Becker is a great lawyer, and no more radical than any other labor lawyer. It's a sign of how far the right has made inroads into our culture that he is seen by some as completely outside the mainstream. It's not like he is an actual socialist, as many labor lawyers and leaders were in the 30s. By constantly pushing the debate rightward, the middle has also moved to the right.

In any case, Becker's appointment is cause for celebration, if for nothing else that it signals Obama's willingness to push forward some of Labor's issues. And now that health care is out of the way, perhaps we can get started on EFCA.

Recess Appointment in the Cards?

For the past two years the National Labor Relations Board has operated with only two members instead of its normal complement of five.  Last Tuesday the Supreme Court heard arguments on whether the Board legally issued the 500 or so decisions it issued while it was down to two members.

The legal issue turns on an interpretation of the section of the National Labor Relations Act in which the five member Board can delegate its authority a three member panel, and then whether that three member panel can delegate its authority to a two member panel.  That's what happened in December 2007 when one of the Board members' terms ended.

The case, New Process Steel, is less of a labor case and more of a statutory interpretation case.  But what it really points out is the ridiculous recalcitrance of the Congress in appointing members (such as Craig Becker) to the Board -- and Obama's reluctance to deal with the vacancies through recess appointments.  Indeed, Chief Justice Roberts made just this point when he asked one of the lawyers why the President didn't just recess appoint members:  "And the recess appointment doesn't work why?"

Look for Obama to appoint Becker and the other nominees over the next break.

Health Care Finally Passes

More than 50 years after FDR proposed universal health coverage in this country we finally have a start on health insurance reform. Personally, I believe we will have to move to a single payer system at some point. Baby steps are good though. I'm still not sure exactly what is in the bill -- the media has been treating the whole thing as a some sort of political football game -- but this is a nice summary to start, taken from the Segal web site:
Stat! Health Reform Weekly | Segal

Patient Protection and Affordable Care Act Passed March 21, 2010

On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act. The Act (HR 3590) was passed by the Senate on December 24, 2009. Consequently, the Act will become law once it is signed by President Obama. The Act is expected to be signed in the next two days, according to Representative Henry Waxman (D-CA), chair of the Energy and Commerce Committee.

A second bill, the "reconciliation bill," was also passed by the House on March 21. The reconciliation bill would revise the Act to reflect substantial changes that were necessary in order to achieve enough votes in the House to pass the Act. This reconciliation bill (HR 4872) must now be acted on by the Senate. If passed in the Senate, the bill would become law and revise many of the provisions in the Act. Senate Majority Leader Harry Reid (D-NV) has promised House members that at least 51 Senators will support the reconciliation bill. Debate on the reconciliation bill is expected to start on March 23, 2010.

A summary of the Act as passed by the House and Senate is available at:

http://www.segalco.com/publications-and-resources/stat/senate-passes-bill.php

A detailed summary of the Act plus the reconciliation bill modifications will be made available as soon as the reconciliation bill is enacted. However, plan sponsors will need to focus on three significant aspects of the Act, including the following:

Changes effective immediately or in 2011

Although existing group health plans will be "grandfathered," that is, exempt from certain requirements, several requirements will now be effective for plan years beginning six months after the date of enactment. If the reconciliation bill becomes law these provisions would include the following items. In addition, the Act states that certain provisions do not apply to plans maintained pursuant to a collective bargaining agreement until the date on which the last of the collective bargaining agreements relating to the coverage terminates.

• No lifetime benefit limits and only limited annual benefit limits
• Coverage for dependent children up to age 26, as long as they do not have access to other employer-sponsored health coverage (the reconciliation bill also assures that this coverage can be provided on a tax-free basis)
• No preexisting conditions for children under age 19
• No rescission of health coverage, except in cases of fraud (primarily an individual insurance policy issue)

Other items that are immediately effective include a Medicare Part D provision that provides that beneficiaries who are in a Prescription Drug Plan and who reach the doughnut hole in 2010 would receive a one-time $250 rebate, as well as a reinsurance program for pre-Medicare retirees (discussed below)

Additional reforms would be effective for plan years beginning on or after January 1, 2014, including a ban on waiting periods over 90 days.

In 2011, Health Flexible Spending Arrangements, Health Reimbursement Arrangements, and Health Savings Accounts can only reimburse participants for over-the-counter drugs with a prescription written by their health care provider.

Long-term changes

• In 2014, the Health Insurance Exchanges, individual mandates, subsidies to purchase insurance coverage take effect
• In 2014, the employer "free-rider" mandate begins, requiring that employers with over 50 employees with an employee that obtains subsidies for coverage in an Exchange pay a financial penalty. The penalties, detailed in the Senate summary, are changed and increased in the reconciliation bill.
• In 2018, the excise tax on health plans above a certain threshold would take effect.

Changes affecting retiree health plans

• Retiree reinsurance program: A program that will take effect within 90 days of enactment will reimburse plan sponsors for 80% of claims between $15,000 - $90,000 for pre-Medicare retirees age 55-64. The program is funded with $5 billion and is designed to be a bridge to the Exchanges in 2014
• Medicare Part D: Beneficiaries who are in a Prescription Drug Plan and who reach the doughnut hole in 2010 would receive a one-time $250 rebate. In 2011, the reconciliation bill provides a 50% discount on brand-name drugs in doughnut hole for retirees in a Prescription Drug Plan; 75% discount on generics. The measure is designed to eliminate the doughnut hole by 2020.
• For employers with a tax liability, the Retiree Drug Subsidy will become taxable in 2013. These employers should immediately consult with their actuaries and accountants as to the implication of this tax change. This change will not generally affect multiemployer plans or governmental plans.
• Medicare Advantage plan payments will be decreased over the next three years.

Doctor Doctor

In a recent decision, the Third Circuit Court of Appeals decided that an employee can prove she had a "serious health condition" by using her own testimony and that of a doctor to show she was unable to work for three days due to her illness.  Under the FMLA, employees can take upaid leave to take care of their own serious health condition.  One of the definitions of "serious health condition" is that an employee must be incapacitated for a period of three calendar days and receive treatment from a health care provider on at least one occasion. 

In the case, Rachael Schaar v. Lehigh Valley Health Systems, http://www.ca3.uscourts.gov/opinarch/091635p.pdf, Mrs. Shaar went to the doctor after suffering nausea, a fever, and vomiting.  Her doctor gave her a note taking her out of work for two days.  After two days, however, Mrs. Shaar was unable to go to work for another day.  Upon her return to the hospital, she was promptly fired for violating the hospital's sick policy.  The hospital claimed she did not qualify for FMLA leave because her doctor's note said she was unable to work for two days, not three.

The court held that Mrs. Shaar's testimony, in combination of her doctor's testimony, was enough to prove that she was unable to work for three days.  The court rejected the approach of some courts, which is that lay testimony alone can establish incapacity, but also rejected the hospital's doctor only approach.

The decision is a common sense victory for employees because it eliminates the need to rely exclusively on doctors or other experts to establish this prong of the serious health condition test.