Stand Strong for Verizon Strikers

It's no secret that the "recovery" the past few years has been almost exclusively for corporations and the richest 1%, while for everyone else the recovery has been flat.  The share of national income going to workers as opposed to corporate profits is at the lowest level since 1942.  In the "recovery" of the past few years, 88% of US growth has gone to corporate profits, with 1% going to workers.

How is this possible?  One answer is the declining power of unions, and the well-orchestrated attacks on unions in both the private and public sector.  Employers smell blood in the water, and are taking the opportunity to squeeze every last concession out of workers.

The Verizon strike by the CWA and the IBEW is a perfect example of corporations trying to crush workers even as they enjoy record profits.  Verizon's earnings exceeded Wall Street'sexpectations last year with annualized revenues of 108 billion and profits of 6 billion.  CEO Ivan Seidenberg was paid 36.75 million dollars last year, and 130 million over the past five years.  One would think that some of this would trickle down to workers, but one would be wrong.

Coming into negotiations for a new collective bargaining agreement for unionized workers at the firm, Verizon has insisted on a host of concessions, from increased health care premiums, to contracting out jobs, to freezing its pension plan and closing the plan to new workers, to eliminating sick days.  The company is insisting on these cuts not because it needs them to remain profitable, but because it feels it can. 

The real reason for Verizon's hard line is that it wants to bring unionized workers' wages and benefits down to the same level as its non-union employees.  Companies like Verizon have tapped into the idea -- made explicit in Wisconsin, New Jersey, and other public employee battlefields -- that union workers are overpaid and should make what their non-union counterparts make.  Companies and bullies like Governors Christie and Walker have successfully engendered resentment in non-union workers who want to know why they should support union workers with better pension and health and welfare benefits then they get.

For many years, unionized workers helped all workers make better wages and benefits, as companies would pay non-union employees more just as a disincentive to unionize.  Now that the economy is in tatters and union workers are afraid to strike, companies are doing the opposite, and trying to drag wages downward.

Make no mistake about it:  when employers seek to cut wages and benefits for some workers, all workers suffer.  One of the theories in support of unionization across industries is that it is immoral to compete for business based on how little you can pay your workers.  A victory for the Verizon strikers is a victory for all workers in the industry, while a loss is an invitation to telecommunications companies to further depress workers and wages.  To show your support, click here and send in a petition: 

Flying Towards Anarchy



 In a move that some say is a preview of coming attractions for a debt ceiling shutdown, the Federal Avaiation Administration lost all funding as of 12:01 Saturday night.  As a result, thousands of workers are being laid off nationwide -- the total could quickly go  up to 90,000, and the government is losing an estimated 30 million a day in tax revenues.  The ostensible reason is that Republicans are refusing to authorize funding unless Democrats agree to a 16.5 million dollar cut in subsidies to small airports -- a mere blip in a $9,793 million budget.  But the real reason for the shutdown is the Republicans' insistence on a rider to the legislation overturning a National Mediation Board decision that allows unionization in the industry based on a simple majority of workers who actually vote, rather than needing a majority of all workers.

Perviously, the profoundly anti-democratic rule for the airline and rail industry was that a majority of all workers was needed in order to unionize, not just those who vote.   In essence, under the old rule someone who didn't bother to vote was counted as a "no" vote regardless of his or her actual preference.  This is different from workers in other industries, where the rule is that a majority of workers actually voting is what counts.  Last year, the National Mediation Board changed the rule to make it like the National Labor Relations Act.  Unsurprisingly, business leaders and their Republican allies in Congress protested the change, claiming it was a sop to "Big Labor."

I have yet to see a reasoned explanation of why the rule shouldn't be that a majority of votes cast is what determines a union election.  It's particularly rich hearing politicians decry the ruling.  After all, they are elected by a majority of votes cast, and they pass legislation based on a majority of votes cast.  Shouldn't politicians be in favor of more democracy, not less?

The FAA debacle shows the extent to which the Republican leadership will go for business and against workers.  They simply don't care about the consequences of their actions, even if it means millions of dollars in taxes and thousands of jobs lost.  Like the debt ceiling crisis, the FAA shutdown shows that the sometimes those who cry the loudest about democracy and patriotism are the least democratic and patriotic among us.

Privacy and the Internet

Remember that photo you posted of yourself on Flickr five years ago when you were on vacation in the Caribbean?  You know, the one where you are in a bikini downing a rum and coke and giving a thumbs-up?  Or how about the one night you were feeling lonely, and posted on a personal dating site that you were looking for some company?  Or the time you joined a Yahoo discussion group called "divorced moms who suffered child abuse"?  You probably don't remember.  But your potential employer will, if they use one of the new background check services that scours everything about you ever put on the internet.

As the paper of record reported yesterday, some employers are using Social Intelligence, a service that scours the internet for everything a potential employee may have done, said, or posted for the past seven years.  Everyone knows (or should know) by now that what you post on Facebook might not be so private.  Social Intelligence digs deeper though, looking at what Yahoo Groups you may have joined, any blog posts or comments you may have made, bulletin boards you may have posted on, Craigslist postings, and anything else that bears your prints on the internet.

The internet has made us all into amateur detectives.  Who hasn't googled someone to see what they can find out about them?  Yet the internet is also changing and forever altering our notion of privacy.  What Social Intelligence does is the equivalent of interviewing friends, family, and everyone else an employee may have known to find out embarrassing information.  I think most people would be outraged if employers had the right to dig that deep into our personal lives.  Somehow, though, because it is done through the internet, people seem to accept these deeper invasions of privacy.

In their influential article "The Right to Privacy," future Supreme Court Justices Warren and Brandeis argued that in a legal sense "the right to life has come to mean the right to enjoy life, -- the right to be let alone...."  This basic right, later found to "emanate" from the Ninth and Tenth Amendments to the Constitution, has been under attack for years, mostly by abortion rights activists, who say there is no such right in the Constitution.  Companies like Social Intelligence further undermine whatever right to privacy is left.

Privacy, of course, implies that a person is doing something in private.  By doing something in public, a person essentially waives his right to privacy with respect to that thing.  The internet confuses these two domains:  when a person posts something in an internet chat room, he is assuming it is private.  However, the reality is that nothing going out on the internet is private.  The best practice is to assume that everything going out over the internet is public.

Time for New Rules

In December 2010, a client filed a petition for a union election for a certain group of employees.  The National Labor Relations Board set the election date 45 days after the petition was filed.  The Union won the election handily, despite an aggressive employer campaign against the union.

After the election, the employer filed meritless objections to the election.  The NLRB dismissed the objections in September 2010.  The employer then refused to bargain with the union, which then filed unfair labor practice charges against the employer.  Once again, the union won before the NLRB.  The employer filed an appeal against that decision to a federal appellate court.  A year and a half after the union filed its election petition, the case is still pending.  During that time there has been no collective bargaining, and it's business as usual at the employer.  As one can imagine, employees are frustrated at the union and support has dropped.  Of course, that is precisely what the employer wanted.

Today the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register, seeking to streamline the election process for Unions.  The new rules would help eliminate abusive employer practices that stall elections, drag out hearings, and would help ensure workplace democracy. 

The way the NLRB is structured currently, employers can insist on meritless hearings, file endless appeals, and frustrate the intent of the National Labor Relations Act -- which is to give employees and employers access to a government agency charged with running elections.  The proposed rules would:

■ Allow for electronic filing of election petitions and other documents.


■Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

■Standardize timeframes for parties to resolve or litigate issues before and after elections.

■Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.

■Defer litigation of most voter eligibility issues until after the election.

■Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.

■Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.

■Make Board review of post-election decisions discretionary rather than mandatory.

These are all sensible rules that have nothing to do with the substance of the NLRA.  Rather, they merely modify current Board rules about how elections are conducted. 

Employer groups are already complaining about the proposed rules, claiming that quicker elections will give them less time to make their case to workers.  This if fairly laughable -- workers will still be subject to mandatory meetings, pressure from supervisors, and employers will still have the ability to campaign against unions and exercise their speech rights.  Union election campaigns are completely one-sided -- unions have no real access to workers, yet employers have access 40 hours per week.  One has to wonder what employers who oppose the rules are really afraid of.

The Weiner Chronicles

One almost has to feel sorry for the unfortunately named Congressman who finally admitted sending pictures of his, umm, Johnson to a stranger on Twitter.  Actually, he accidentally sent the picture to all of his Twitter followers.  Weiner obviously showed terrible judgment and then compounded things by telling a ridiculous lie about it -- first that someone hacked the Twitter account, then saying the he couldn't  be sure the picture wasn't him, then finally coming clean about it.  But should he lose his job over the scandal?

I've had several cases where employees are fired or disciplined for sending inappropriate messages, pictures, and texts to co-workers.  In one case an employee sent a copy of himself having sex with another co-worker to the co-worker.  Problem (for him) is that he was married and the co-workers had broken up.  In another an employee took a picture of his little Congressman and showed it to someone else at work, who then told a colleague, who told another colleague, who told a supervisor who surreptitiously picked up the phone and was shocked, shocked by what she saw.  Both employees got their jobs back, but just barely.

In these cases the employer typically argues that the employees were guilty of "harassment" or "inappropriate conduct."  The problem  for the employer is that sometimes the employee who receives the photo or text isn't offended and doesn't feel harassed.  Other employer arguments are that the exchanges took place during work time, or were on work phones.  These arguments are a little harder to overcome, as it's hard to argue that the employer can't place restrictions on what employees do at work on employer equipment.

On our side, I usually argue that the employee to whom the message was sent wasn't offended, or if she professes offence now, couldn't actually be offended (e.g., the lady who allowed herself to be shot having sex, then objected to receipt of the shot later).  Or, if the victim is truly offended, I try to offer an apologetic grievant who did not know he was offending.  If it fits, I argue that what consenting adults do on their own time is nobody's business, and certainly not the employer's.

This is what makes the Weiner case interesting.  Was Weiner acting in his role as a citizen, or Congressman?  Was he doing what he did on the taxpayer's dime, or on his own time?  Did he use government resources?  It's not clear that Weiner violated any House ethics rules, at least according to the pundits.  But he may be forced to resign anyway, probably because he tried to "cover up" the misdeeds by lying about it.

There's a world of difference between lying about a half-naked picture of yourself, and lying about something more consequential, for example, breaking into the Watergate Hotel.  The distinction has been lost in our political culture.  Nonetheless, I'm reminded of clients who, when caught, end up telling a ridiculous lie about; the case then becomes about the lie rather than the underlying issue.  I would of course prefer that they tell the truth.  But if they choose not to do that, at least tell a better lie.  In the end, Weiner's failure to come clean may lead to his downfall.

Unions and Rats

Sometime in the 1990s, unions began using huge inflatable rats to call attention to labor disputes.  Unions love the rat.  Usually about 15 feet high, unions place the rat across the street, or near employers with which they have a dispute.  This week, the NLRB ruled that using a rat is not unlawfully coercive picketing.

In 2006 the Sheet Metal Workers Union had a dispute with a non-union contractor who was doing work in hospital.  The union brought the rat out, placed it across the street from the hospital, and handed out leaflets explaining that there was a "rat employer" in the hospital paying less than area standards.  The hospital filed a charge alleging unlawful secondary boycott activity.

It is against the law for a union to coerce employees of an employer with whom it does not have a direct dispute into refusing to work for the neutral employer.  So, for example, if a union has a dispute with a contractor working at a hospital, it cannot picket in front of the hospital in an effort to prevent the hospital employees from working.  Such a dispute is called a "secondary" dispute because the union is trying to put pressure on the second employer to get its way with the first employer.  Personally, I see nothing wrong with this tactic, but the Congress in 1947 disagreed and made it unlawful in the Taft-Hartley Act.  There is nothing unlawful, however, about persuading members of the public not to patronize either the first employer or the second employer.

In the original Administrative Law Judge decision, the judge found that the union's conduct was against the law because it was coercive.  However, after reviewing the case on remand from the DC Circuit Court of Appeals, the NLRB found that the union had engaged in lawful conduct. 

The Board held that there was no picketing or other coercive conduct, and that the rat was far enough from the hospital's entrance that it would not deter people from entering.  In response to the dissent's claim that the rat was "signaling" to people that they should not patronize the hospital, the majority stated that was exactly the point -- and that unions are entitled to inform the general public about their labor disputes.  Interestingly, the Board quoted  at length Snyder v. Phelps, the recent Supreme Court decision that said the First Amendment protects the right of picketers at military funerals to say that God was punishing the United States for its tolerance of homosexuality.

The rat may be a crude way of getting one's message across, but it has proved effective.  Most employers would rather not see a giant rat across the street protesting a labor dispute.  With the recent NLRB decision, however, we can expect more rats in the streets.

Another Facebook Complaint

In the Register Guard decision, which came out during the latter part of the Bush Board, dissenting member Liebman accused the NLRB of being the "Rip Van Winkle" of administrative agencies.  At the time, and in the context of that decision (which held that employees could not use employer email systems for Section 7 of the NLRA purposes) that was certainly true.  Recently, however, the NLRB has been in the forefront of protecting employees using social media for concerted, protected activities.

Under the NLRA, employees are permitted to engage in "protected concerted activities" for their mutual aid and support.  So, for example, it would be unlawful for an employer to fire or discipline employees who gathered around the water cooler and complained about their working conditions.  Or, if employees criticized their supervisor for the way he treated them, the employer would not be permitted to fire the employees.

In a series of cases, the NLRB has simply taken this rule and extended it to social media sites, like Facebook and Twitter.  Last  year the Board issued a complaint against American Medical Response for maintaining a rule that infringed on employees' rights to communicate on FB about workplace complaints, and for firing a worker who criticized his supervisor on FB.  The case eventually settled.

In the past couple of weeks the Board has issued complaints in two other FB cases.  In one, an employee at a BMW dealership was fired after he posted a complaint on his FB page about the quality of food and beverages at a dealership event.  The employee grumbled that only having hot dogs and water at the event could cut into their commissions.  Seems to me that serving hot dogs to BMW customers is probably insulting, even in Chicago, but nonetheless, the Board agreed with the employee that he was engaged in protected activity.  In another case, a Buffalo non-profit fired several employees after they complained about working conditions on their Facebook pages.  The Board has issues a Complaint in the case alleging that the discharges were unlawful.

Predictably, employer groups and management lawyers are in an uproar, claiming that this is an activist Board squashing employer rights.  But really, the issue here is employers overreaching and dicatating to employees what they can and can't do on their own time.  Plus, all the Board is doing is extending what is already the law into situations that obviously did not exist when the NLRA was enacted.  An employer can't fire an employee who sits at a bar and tells his coworkers how much the boss sucks.  So why should an employer be allowed to do that to an employee who does the same thing on FB?

Moreover, employer concerns that employees will now be able to "disparage" their employers are unfounded.  In a recent Advice Memorandum, the Board concluded that an employee was lawfully fired for posting inapproriate tweets on his Twitter account.  According to the Memo, the tweets were not protected because they did not involve terms and conditions of employment, and did not involve other employees.  Instead, the employee was simply venting and posting tweets.

Rip Van Winkle has finally awakened from his slumber.  Perhaps I'll post this on my FB page now.

Master of the Universe and the Maid

The news this weekend that prominent French Socialist policitian and International Monetary Foundation head Dominique Strauss-Kahn was arrested for assault and attempted rape has made headlines all over the world.  Strauss-Kahn is obviously in deep merde, as there is apparently possible DNA evidence linking him to the crime, not to mention the fact that he left his $3,000 a night hotel so quickly for his first class plane flight that he left his cell phone behind.

Strauss-Kahn has been criticized in the French press for living a life of luxury, replete with expensive cars, multi-million dollar houses, and suits that cost in the neighborhood of $10,000.  There is nothing wrong with a socialist indulging in such luxuries; after all, Strauss-Kahn makes more than $420,00 a year (as of 2007 - he gets annual increases tied to the Consumer Price Index), and earns an allowance of $75,000 per year after taxes to maintain "a scale of living appropriate to your [his] position as Managing Director" of the IMF."  To ensure a comfortable retirement, Strauss-Kahn also gets a supplemental defined pension benefit on top of his normal pension.

The $3,000 a night hotel room Strauss-Kahn stayed in could easily have been paid out of his allowance or salary.  It wasn't.  SK's employment contract provides as well that he will be reimbursed for travel and hotel expenses.  So the $3,000 a night hotel was paid by the IMF, as would have been the first-class transtlantic flight.  To be fair, an employee should not have to pay for his own hotel room and flight if he or she is somewhere on business.  However -- $3,000 a night?!  That doesn't seem like a reasonable business expense to me.

The bigger picture here, though, is the incredible gulf between those who make and set policy and the rest of us.  The IMF has been very insistent on everyone else tightening their belts and reducing deficits, even if it means salary and benefit cuts for workers.  The IMF has been very critical of pension benefits in the public sector, urging cuts in nearly every country into which it intervenes.  Yet here we have the head of the IMF not only making nearly a half-million dollars a year, but also getting for himself an enhanced pension benefit.

An argument can of course be made that one needs policy makers to be objective, to make policy based on what is best for a country rather than what is best for its workers.  And yet the extent to which our leaders are out of touch with workers is disturbing -- something like 60% of the US Senators are millionaires, as are 40% of Congressmen.  This compares to 1% of the rest of us.  Whose interests do you think they have at heart when voting on taxes for the wealthy and eliminating the estate tax?

I don't know whether Strauss-Kahn tried to rape a maid in a Manhattan hotel room or not.  If he did, that is a crime for which he should go to jail.  People are understandably outraged about the allegations.  I'd also like to see a little outrage at the disconnect going on between those who preach austerity to the rest of us from their $3,000 a night hotel rooms, while waiting to collect their own enhanced benefit packages.

   

Right to Work (For Less)

It's no surprise that the any progressive labor reform like card check is dead now that the Republicans are ensconsed in the House and have a deadlock in the Senate on any legislation.  It's still a surprise how viciously they are going after Labor.  Many states are attempting to pass "right to work" legislation, in which there is no way for unions to eliminate the "free rider" problem.  That is to say, there is no way to require unionized employees to pay for their representation through a union security clause.  Laura Clawson over at the Daily Kos explains the fallacy of Right to Work laws much better than I could, so I will simply post the link below:

Right to Work and the Assault on the Middle Class

The Pizza Principle

When I was 15, I got a job as a dishwasher at Filippi's Pizza.  I made minimum wage, and the work sucked.  Yet I still loved working, and I also loved one of the perks:  free pizza and pasta when working.  This principle, call it the pizza principle, applies at work everywhere.  It is understood that employees get discounts, and in some industries employees get freebies.  Everyone understands that.  Everyone, that is, except Governor Christie of New Jersey.

For at least the last 40 years, employees at PATCO, which operates the trains between New Jersey and Philadelphia, received a free train pass as part of their employment package.  And, about 15 years ago, employees were given a certain number of free bridge passes.  This is just the pizza principle applied to public transportation; virtually every train and bus system in the country gives this perk to its employees.

But then last summer a management employee making nearly $175,000 a year got caught giving a colleague's EZ-Pass toll to his daughter.  There was public outrage, and in response to that (plus intense criticism of the Delaware River Port Authority, PATCO's parent company, for lots of questionable spending) the DRPA revoked every employee's free train and bridge pass.  It's a classic management strategy -- someone at the top screws up and spending is out of control, so it gets taken out on the little guy.  Governor Christie explained that "members of the public don't get free passes, so why should the DRPA employees."

The Unions representing the affected employees took the case to arbitration, including a union I represent, Teamsters Local 676.  In a resounding rebuke to the DRPA, the arbitrator ruled that the DRPA had violated clear contract language, and also had violated a past practice between the parties.


The Arbitrator noted in the decision that "the Employer cannot walk away from its solemn obligations under the collectively bargained agreements.  The language of the agreements establishes, without reservation, that the Employer's action of not granting the benefits violated the terms of the agreements and well-established, well-utilized past practices."

The decision is well-written and reasoned, and the unions won based on basic contract law.  Governor Christie's obsession with government spending seems to apply only to working folks and people other htan himself.  It was obvious to anyone with even a hint of labor relations that what the DRPA did was wrong and unlawful.  Yet the parties had to spend thousands of dollars at arbitration, and the DRPA is going to have to spend thousands more to reimburse employees who had to pay for bridge and rail travel -- and this is a real dollar cost, unlike the free passes, which do not require any fiscal outlay.  More to the point, if the Governor had thought for more than a second about the pizza principle, the whole mess could have been avoided.

Blame the Unions

As the jobless recovery in this country continues, millionaires get tax breaks, and the income inequality is at its highest peak since the gilded age, it appears that we have finally figured out who the the culprit for our troubles:  Labor unions.  In one article this week, the New York Times reported that there is growing anger amongst the populace against public sector unions.  Another article outlined Republican politicians' strategy for curbing labor's influence by enacting legislation taking away the right to bargain, become "right to work" states, and even the right to strike. 

The gist of the articles is that public employee pensions and health benefits are bankrupting the state and local governments, which are faced with cutting those benefits or raising taxes.  One article claims that the taxpayers are unwilling to fund benefits that they themselves to not enjoy.  The other article shows how the Republicans are using this "outrage" to tey and enact laws that weaken unions.

It is true that some employees in the public sector have retained benefits that many more workers used to enjoy, including the grandaddy of them all: a defined benefit pension, in which an employee has guaranteed payments for life.  The DB pension has now been replaced by a 401(k), in which all the investment risk passes to the employee, leaving the employer completely off the hook.  Ask people who wanted to retire around the time of the last stock market crash which they would rather have.

Private sector workers have mostly accepted that they will not be getting a guaranteed pension, and are quickly coming to accept that employer-paid health insurance isn't guaranteed either.  What's interesting is that these workers are turning in anger and frustration not towards their employers, or corporate America, but towards public sector workers who have it better than they do, at least in retirement. 

In Jonathan Franzen's excellent new novel Freedom, one of the characters says that "the conservatives won.  They turned the Democrats into a center-right party....they especiallly won culturally...."  It's hard not to agree.  Since the PATCO strike of 1980, conservatives have largely succeeded in turning the cultural discourse away from class issues, and most perplexingly, turned people who should naturally be sympathetic towards unions (like blue collar workers) against them.  This isn't to absolve unions, who have brought many troubles upon themselves.

Instead of joining management in a race to the bottom, where competition in the market is based in part on how little workers can be paid, we should be focusing on how to bring everyone else up.  Certainly public sector unions and employees may need to have their expectations diminished somewhat. But by the same token, people should be asking themselves why they don't have pensions and health care -- and using public sector employees as a model rather than demonizing them.

Fanning public resentment over public employees serves some convervatives' goals of weakening unions and making sure no one has a guaranteed pension -- after all, some even want to privatize social security.  And while there is room for reform of public sector pensions and benefits, that doesn't mean we have to set workers in opposition to each other. 

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.