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.