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.