Category Archives: Workers' Rights

Wisconsin Republicans Strip Workers’ Rights Without Open Meeting

Unless you have spent the last few weeks on Mars, or simply have no interest in the fact that democracy in the United States in under attack from extreme right-wing interests in many states, then you probably have heard something about the anti-democratic events unfolding in Wisconsin.  Right-wing governor, Scott Walker, in office less than a year, is attempting to completely abolish the collective bargaining rights of Wisconsin’s public workers, including teachers.  The anti-union measures were part of a larger budget bill being considered by the Wisconsin Legislature.

In response to Walker’s efforts, the state’s 14 Democratic lawmakers fled to neighboring Illinois, thereby defeating the Legislature’s quorum.  Last night, however, the Republic majority voted to separate the issue of workers’ rights from the larger budget bill.  By invoking this rare procedural move, the Republicans, effectively, gave to themselves the right to proceed with a smaller quorum than was required to consider a budget bill.

More significantly, the vote took place without any public debate, which Wisconsin Democrats argue violates the state’s “open meeting laws.” For those of you interested in the specific issue of “open meeting laws” and “freedom of information” in the United States, a good starting point in your research would be this excellent Wikipedia article.

This morning, in response to the events, Governor Walker issued an interesting statement, saying in part:  “We cannot balance a budget on a hope and a prayer…”

What an interesting statement.  When Congresswoman Gabrielle Giffords nearly lost her life to a gunman’s bullet, right-wing radicals in this country – coming to the defense of Sarah Palin and the NRA‘s pro-gun stance – told us we should simply “pray” for a solution rather than look for secular solutions like gun control.  Prayer, apparently, was all we needed to magically undo the tragic – and avoidable – events that befell Giffords and others.

Now, another right-wing extremist, Gov. Walker, tells us that prayer is not enough to simply correct a balance sheet.  How convenient!  Of course, he is correct.  Prayer won’t do the trick.  Unfortunately, what he isn’t mentioning is that he and his cronies all across the Nation refuse to ask the wealthiest among us to pay their fair share.

When are the People going to wake up?  If you are really hungry – even starving – what do you do?  You go to where the food is, be it a grocery store or a restaurant.  You don’t go to the dry cleaner down the street and ask them to give you food.  You don’t go to your kids’ third grade teacher and make her quench your thirst.  You go to where the food is!

Why do we not insist that our leaders to where the money is – the banks, the lending houses, the defense contractors, international mega-corps.?  What are we waiting for?  An Act of God?!?!?

Maybe we should just pray that the rich will pony up the funds on their own.  How’s that been working out so far?

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ReBlog – Workplace and Domestic Violence – From California Family Law Paralegal

Many of you may not know this, but October is Domestic Violence Awareness Month.  As the month is now almost over, I am asking all my readers to take moment and read this excellent article from my friend, Lori Paul’s, blog, California Family Law Paralegal.

Here is the link:

Workplace and Domestic Violence « CALIFORNIA FAMILY LAW PARALEGAL.

If you or someone you know is suffering some form of domestic violence, encourage them to get help or get help for those unable to help themselves.  A good place to start is the National Domestic Violence Hotline, which offers resources both nationally and in your area.

Freedom from violence and abuse is a civil right we all should enjoy.  Violence at home or in the workplace is unacceptable…period.

In Significant Workers’ Rights Case, The U.S. Supreme Court Grapples With Grammar

In legal disputes, success or failure often turns on the definition of a word.  For example, what does the word “file” mean?  To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without.  To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint.  Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.

Black’s Law Dictionary defines “file” in this way:

1. “A record of the court.  A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.”  (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.

Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly.  Oh, but if language were that simple.  Words don’t exist in a vacuum, after all.  They represent beliefs and intent expressed in a particular context.  As I heard an attorney state in a recent oral argument, “Nomenclature matters.”  Yes, it does.  But, so does context.

During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.”  While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA).  The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory.  Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint.  The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.

So, the crux of the issue is this:  Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?

According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints.  These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers.  Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.

The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA.  In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do.  Counsel for the employee, Kevin Kasten, remarked:

“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”

Realistically, both sides have a valid point.  In those case, the “right” decision usually is a combination of both viewpoints.  Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures.  Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow.  To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions.  In and of itself, that smacks of unfairness.

Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added.  Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones.  Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual.  Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off.  These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.

As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint.  In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.

A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint.  If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing.  In past generations, that might have been a letter, a handwritten note perhaps.  Today, it can be easily achieved via electronic means.  Do yourself a favor and don’t lock yourself into a dispute like this employee did.

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Male-Male Sexual Harassment Claims On The Rise; The Cheesecake Factory Settles

Newsweek published an interesting article online today about sexual harassment, entitled “Abuse of Power” which you can link to here.

The article discusses a 2008 suit filed by the EEOC against restaurant giant, The Cheesecake Factory.  The suit alleged sexual harassment at the chain’s Chandler Mall location in Phoenix, AZ, including incidents of fondling, simulated rape, and employees being forcibly dragged into a restaurant refrigerator.  The Cheesecake Factory has recently settled the suit, agreeing to pay each of the plaintiffs in the case $340,000.

What makes the article – and, indeed, the EEOC action – most interesting, however, is that the suit was brought by a group of male employees, alleging sexual harassment by other men in the workplace.  According to the EEOC, such claims are on the rise.  Their office has witnessed a doubling of such claims between 1992 and 2008.  Male to male sexual harassment claims now comprise approximately 16 percent of all sexual harassment claims.  However, it is thought that such claims may actually represent an even higher percentage because the EEOC does not always maintain records of the harasser’s gender.

Male to male sexual harassment cases illustrate a fact not often understood about sexual harassment cases.  Sexual harassment cases are about power – not sex, flirting, or seduction.  In The Cheesecake Factory case, for example, no allegations were made that the harassers were actually attracted to men.  Rather, the behavior of the harassers in the case was a form of intimidation.

In 1998, the U.S. Supreme Court recognized a cause of action for same-sex sexual harassment in the landmark case of Oncale v. Sundowner Offshore Services.  I have placed a PDF copy of the case in the Box.  The Court’s decision was unanimous.

Oncale arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male coworkers with the acquiescence of his employer. The Court held that Title VII‘s protection (Title VII of the Civil Rights Act) against workplace discrimination “because of… sex” applied to harassment in the workplace between members of the same sex.  Oncale was heralded as a major “gay rights” case, even though all the parties in the case were heterosexual.

In Oncale, the plaintiff was subjected to horrific acts of violence in the workplace, including being sodomized with a bar of soap.

According to the Newsweek article, “tough economic times have also been known to foster an environment of increased sexual harassment,” quoting human-resources consultant Michele Paludi. Harassment escalates when those in power feel threatened, either by an influx of female workers or a challenge to the traditional gender expectations.

Title VII law requires supervisors or employers to act promptly to investigate and remedy sexual harassment once they become aware of it.  Failure to do so can lead to employer liability.  In December 2009, for example, the U.S. Court of Appeals for the 2nd Circuit ruled in Duch v. Jakubek, 2009 WL 4421267 (2d Cir. 2009), that a jury reasonably could find that a supervisor who ignored facts regarding suspected workplace sexual harassment had constructive knowledge of the harassment and, thereby, exposed his employer to liability under Title VII.

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