About Us  |  About Cheetah®  |  Contact Us

WK WorkDay Blog

Subscribe to the Employment Law Daily RSS Subscribe

Wage violations may lead to “trickle-up” economy stagnation

September 8th, 2009  |  Matt Pavich  |  Add a Comment

>Next week, if someone were to rob you of $51, you’d probably call the police. Now imagine that it happens every week. Or let’s say that you’re driving and someone broadsides you, but pressures you into not going to the hospital for your injuries.

Sound outlandish? Seem a bit predatory? Sound like something that could never happen here? Well, these scenarios are reality for approximately two-thirds of the low-wage workers in the United States, according to a recent study. The New York Times has reported that the study, which analyzed wage violations in low-wage industries, found that the typical low-wage worker lost the aforementioned $51 per week due to wage violations. That’s a hefty chunk taken out of an average paycheck of $339.

See the story here: http://www.nytimes.com/2009/09/02/us/02wage.html?_r=3&partner=rss&emc=rss

It gets worse for those toiling in, among other industries, apparel manufacturing, child care and retail. In what is certain to be a controversial finding, the study suggests that employers have enjoyed astounding success in pressuring their low-wage workers not to file workers’ comp claims. A breathtakingly low eight percent of these workers file for compensation when they suffer serious injuries on the job.

It gets worse still. 57% of the participants did not receive mandatory pay documents that would ensure legal and accurate compensation. 12% of workers who received tips stated that their employer stole their tips. And of the workers who filed wage complaints, 43% said that they experienced some form of illegal retaliation as a result.

And these violations are not, according to the study, limited to a few bad actors, nor do the violations disproportionately affect undocumented workers, those least likely to assert their rights. Instead, the study shows that the disregard for federal labor standards is widespread throughout the low-wage labor market and affects in almost equal parts, undocumented workers (39%), legal immigrants (31%) and native-born citizens (30%.)

We can expect more workers to be affected by such violations. According to recent reports, the underemployment rate — which includes part-time workers who’d prefer a full-time position and people who want work but have given up looking — reached a record 16.8 percent. That’s more and more workers who are forced to take low-wage, part-time employment.

And that, indirectly, affects us all. An already-struggling economy isn’t receiving the assistance it could from these workers who have less money to spend as a result of these violations. And the federal government, which needs the money for little things like health care reform, paying down the deficit and financing two wars, isn’t getting all the tax revenues that it can.

So, what is to be done? Obviously hiring more investigators is a good first step. Immigration reform might assist as well, as it would theoretically offer a reason for undocumented workers to come out of the shadows, thereby diminishing the power employers have over those workers. And some version of labor reform is essential to give employees a stronger voice. But, as previously noted, this might not happen.

As any casual observer of labor reform efforts knows, its opponents have been far more effective at spreading their message than have its proponents. And that’s fine. One of the hallmarks of our modern American democracy is that the group that messages the best gets to light the cigars. But a recent comment by Senate Majority Leader Mitch McConnell (R-KY) highlights a general belief that may doom labor reform. The Bluegrass State Republican explained why none in his caucus will vote for the Employee Free Choice Act, no matter what form it takes, should the day come when it reaches the Senate floor. Workers, you see, don’t want to join unions because of the “very enlightened management in this country now, treating employees better.”

If McConnell’s statement is taken at face value, it suggests that many simply don’t believe that egregious wage violations and unfair labor practices still occur. The participants in this survey would beg to differ. Perhaps because of the industries in which they work and the pay they receive, their voices just don’t get heard as often as they should. But we disregard their plight at risk to our own economic future.

Add a Comment


If an e-mail is in “all caps” and no one is around, does it make a sound?

September 4th, 2009  |  Lucas Otto  |  Add a Comment

>

IS WRITING IN “ALL CAPS” ANNOYING, DISTRACTING OR EVEN INSENSITIVE? AM I SHOUTING AT YOU? WOULD THIS STYLE OF WRITING, IF PUT IN AN E-MAIL AND SENT OUT, CONVEY A CONFRONTATIONAL ATTITUDE TOWARD ITS RECIPIENTS? WOULD IT BE WORTH TERMINATING AN EMPLOYEE FOR SENDING OUT AN E-MAIL IN “ALL CAPS?”

Well, at least in one instance, this perceived “e-mail shouting” was a costly endeavor. Just ask Procare Health, which fired Vicki Walker in December 2007 after colleagues in New Zealand complained about her e-mail messages that were in “all caps,” and sometimes bolded and in red font. It cost Procare Health $11,500 U.S. dollars ($17,000 NZD) for unfair dismissal, and garnered the company a lot of negative media attention.

Okay, so maybe “all caps” is a bit annoying, but is it something worth firing an employee and going to court over? Although this was a case in New Zealand, it is not a stretch to think that this kind of situation is coming to a courthouse near you. Ms. Walker’s employer determined that her e-mail, making use of “all caps” and sent to other employees, was far too confrontational, and was the equivalent of “shouting” at the employees. Essentially, the employer worried that one employee had hurt the feelings of, or intimidated, another employee, and it took action. If this type of situation doesn’t sound familiar, it should, as the employer clearly thought this kind of “confrontational” e-mail style had the makings of a workplace harassment or discrimination claim.

If this all sounds like a trivial, even silly, employment problem, well, it might be, but as ridiculous as it may sound, it has the potential to cost an employer thousands of dollars, not including court costs and legal fees. Yet, the idea of e-mail usage costing employers shouldn’t be so unbelievable, as there have already been a litany of problems associated with employee e-mail, e.g., inappropriate e-mails sent out, using e-mail to threaten, and using e-mail for personal business on company time. However, firing an employee for “all caps” in an e-mail may be more knee-jerk reaction and less common business sense.

The fact is, e-mail use is so pervasive and necessary in our daily work lives that it has almost single-handedly replaced most telephone calls, so it is no wonder that something so seemingly inconsequential like using “all caps” in an e-mail could lead to a workplace mess. That is why it has become so important for employers to not only teach employees how to utilize e-mail effectively in the workplace, but also how to use proper e-mail etiquette.

The Web site emailreplies.com cited an excerpt from Nancy Flynn and Tom Flynn’s book, Writing Effective E-mail, which stated:

By requiring employees to use appropriate, businesslike language in all electronic communications, employers can limit their liability risks and improve the overall effectiveness of the organization’s e-mail and Internet copy in the process.

The website goes on to further list the 32 most important email etiquette tips, and notes that a company needs to implement etiquette rules for the following three reasons:

  • Professionalism: by using proper e-mail language your company will convey a professional image.
  • Efficiency: e-mails that get to the point are much more effective than poorly worded emails.
  • Protection from liability: employee awareness of e-mail risks will protect your company from costly law suits.

While the concept of an “all caps” e-mail may not be discharge-worthy at all businesses, the fact that it occurred at all, or that there were employee complaints, shows that today’s work environment might be a little more “tech-touchy” than anyone thought. So, take the time to train employees and senior management on e-mail etiquette, because a little training can potentially save a business all the TIME, MONEY AND EMBARRASSMENT OF LITIGATING THESE TYPES OF CLAIMS.

Add a Comment


Which side are you on?

September 2nd, 2009  |  Lisa Milam-Perez  |  Add a Comment

>Far be it for me to wade into the increasingly bitter turf wars between the SEIU’s United Healthcare Workers-West (SEIU-UHW) and the National Union of Healthcare Workers (NUHW), the upstart formed by exiled SEIU-UHW officials. But the dueling unions aren’t doing any favors for organized labor in its fading hopes of passing the Employee Free Choice Act (EFCA) with card-check intact. If it is to capitalize on the most labor-friendly legislative climate in decades, a united front among organized labor is essential. (Isn’t that why Change to Win and the AFL-CIO are in peace talks, after all?) Failing that, at least don’t air the dirty laundry.

But labor can only hope the anti-EFCA folks don’t get their hands on the latest salvo fired off by SEIU-UHW in this internecine skirmish.

SEIU-UHW is embroiled in a dispute with NUHW over the representation of San Francisco home care workers, among others. Currently NUHW is trying to get SEIU-UHW decertified as the home care workers’ bargaining rep, and SEIU-UHW is crying foul. In an August 31 press release, the SEIU called for a hand-examination of each signed decertification card collected by the NUHW, citing more than 1,000 incidents of “lies, coercion, and fraud” in the signature drive.

According to SEIU, members have reported “more than a thousand incidents in which improper tactics were used to coerce workers, their family members, and the people they care for to sign cards by representatives who came to their homes.” The incumbent union contends the same tactics were used in an earlier representation dispute with NUHW, when one-third of the cards collected were found to be invalid when hand-checked.

“Apparently, the only way NUHW believes it can get the number of signed cards they need is by frightening and tricking us into signing,” one worker is quoted as saying—one of a throng who are asking to have their cards returned after NUHW improperly collected signatures, SEIU says.

Sounds pretty ugly.

So the union wants each card and each signature hand-checked against official records to verify the signature—“to protect these workers’ rights and ensure a fair process.”

That’s not the anti-union National Right to Work Committee talking, or the Center for Union Facts. It’s the 2.1 million member SEIU—the nation’s fastest growing labor union. The union that put card-check recognition on the map.

Here are a few of SEIU’s claims of improper tactics by NUHW:

  • Workers were told that signing a card was the only way they could keep their union.
  • Workers were threatened that they could be deported if they did not sign.
  • NUHW representatives said they were from a government agency.
  • NUHW reps pressured family members and even home care consumers to sign the cards.
  • A worker was told to sign “a petition to protect our rights.” It was not until “a few months ago that I realized that, through their lies, they try to move me to a different union.”
  • One member “was overwhelmed when two workers from the hotel union knocked at her door pressuring her to sign a petition. They told her the petition was for their voting freedom and it would not affect her union. Then they refused to leave until she signed.”

Intimidating home visits. Misleading tactics. Widespread unfair labor practices. This kind of talk won’t woo any EFCA fence-sitters in Congress. In fact, these are the very complaints of card-signing coercion that EFCA opponents have lodged. Has the SEIU divulged the unsavory devices that union organizers employ in their efforts to secure workers’ signatures? Or is the SEIU overstating the misconduct of its rival to win its turf battle at all costs?

Again, far be it for me to say. But the SEIU increasingly has been going rogue of late. The union, with Andy Stern at the helm, stands accused of abetting the break-up of UNITE-HERE, of raiding unions, of cozying up to Wal-Mart—labor’s favorite adversary—on healthcare reform. Other union leaders and labor supporters have voiced their displeasure, as UNITE-HERE is all too happy to document: http://www.wrongwayseiu.org/.

The SEIU won’t likely win its friends back by making the case against card-check.

Add a Comment


And this little piggy went to your workplace… and might decide to stay

August 31st, 2009  |  Deborah Hammonds  |  Add a Comment

>The resurgence of the H1N1 influenza (swine flu) this fall and winter could infect approximately 30-50 percent of the US population, hospitalizing up to 1.8 million people and causing between 30,000-90,000 deaths, according to recent estimates from the President’s Council of Advisors on Science and Technology in an 86-page report to the White House assessing the government’s preparations for the H1N1 influenza. Employers, who are already reeling from the recession, must also brace themselves for the return of the H1N1 influenza because a pandemic could result in an estimated 30-40 percent reduction of their workforce and significant absenteeism for up to 12 weeks.

While the H1N1 influenza discovered last spring was decidedly less severe than originally anticipated, the flu strain, for which a vaccine is not expected until October, seems to be targeting a disproportionate number of children and young adults, according to a recent Centers for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report. This is a key reminder to employers that employees may be absent from work not just because they are sick, but also to care for their sick family members.

Timing. The fall resurgence may well occur as early as September, beginning with the school term, with the peak infection hitting in mid-October, according to the President’s Council report. However, significant availability of the H1N1 vaccine is currently projected to begin only in mid-October, with several additional weeks required until vaccinated individuals develop a protective immunity. The government is asking employers to consider offering not just the seasonal flu vaccine to their employees, but also the H1N1 vaccine, once it’s available. The federal government has said that the vaccine will be provided at no cost to health care providers. Even then, (1) pregnant women, (2) health care workers/emergency medical responders, (3) parents or guardians of infants under 6 months of age, (4) persons between the ages of 6 months and 24 years of age and (5) individuals under 65 who are at higher risk for H1N1 influenza because of chronic health conditions or compromised immune systems would be the first to receive the vaccine, according to the CDC, with the elderly and then everyone else next in line. The majority of the H1N1 vaccine will be in multi-dose vials, with the remainder in single-dose syringes or nasal sprayers.

Given all the unknowns related to the H1N1 vaccine—owing to its availability and coverage—it begs the question, what should employers be doing now?

Recommendations for employers. Updated guidance from the CDC encourages employers to plan now for the impact that both the seasonal and the 2009 H1N1 influenza could have on their employees and operations. Among the CDC’s suggestions are the following:

  • Review or establish a flexible influenza pandemic continuity plan and involve your employees in developing and reviewing the plan;
  • Have an understanding about your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter;
  • Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information;
  • Cross-train personnel to perform essential job functions so that the workplace is able to operate even if key staff are absent;
  • Assess your essential functions and the reliance that others and the community have on your services or products; be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed);
  • Allow sick employees to stay home without fear of losing their jobs;
  • Develop other flexible work arrangements (i.e., telecommuting) to allow workers to stay home to care for sick family members or for their children if schools dismiss students or child care programs close;
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave, pay and benefits policies will be available to them;
  • Encourage infection control practices in the workplace such as displaying posters that address and remind employees on correct hand and respiratory hygiene and cough etiquette;
  • Consider canceling non-essential, face-to-face meetings and travel during flu season; and
  • Add a “widget” or “button” to your company web page or employee web sites so employees can access the latest information on influenza: http://www.cdc.gov/widgets/ and http://www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html.

In addition to the obligation to provide your employees and customers with a safe and healthy workplace, employers must avoid any liability issues that may arise when responding to the 2009 H1N1 influenza pandemic.

Add a Comment


If the courts won’t tell us, how will we know?

August 28th, 2009  |  Pamela Wolf  |  Add a Comment

>A law is only as good as a court’s willingness to apply it to the very real circumstances encountered by the individuals the law seeks to protect. So, courts are often called upon to determine exactly how far each protected category extends. For example, does the protected category of sexual orientation extend to ex-gays? Does the protected category of pregnancy (derived from the protected category of sex) extend to women, who, as a result of having a baby, are lactating?

These are the questions that the Superior Court for the District of Columbia and the Supreme Court of Ohio, respectively, had the opportunity to answer. One court answered the question loud and clear. The other missed the chance to provide clarity to the many women who need to know how far the law reaches when it comes to sex discrimination – do women in Ohio have to choose between their jobs and providing mother’s milk for their babies?

The sexual orientation question. In the D.C. case, the Parents and Friends of Ex-Gays, Inc (PFOX) challenged the District’s Office of Human Rights’ (OHR) rejection of the group’s public accommodations claim, finding that ex-gays are not members of a protected class under the District’s Human Rights Act (HRA), and, even if they were, the National Education Association (NEA) had rejected the group’s application for a booth at its annual convention for nondiscriminatory reasons. NEA viewed the group as hostile to gays and lesbians, and thus, its message was contrary to NEA’s policies regarding sexual orientation.

The court rejected OHR’s finding that ex-gays are not protected under the HRA since they do not have an immutable characteristic (presumably required for protected categories), calling it “clearly erroneous as a matter of law.” The HRA lists many protected categories such as religion, personal appearance, familial status, and source of income, all of which are subject to change, noted the court. Moreover, the HRA defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” The court made it clear that the immutability of sexual preferences was not a part of the equation because the HRA protects sexual practices as well as preferences.

While ruling that OHR erred on the protected category issue, the court found that, although PFOX presented a prima facie case of discrimination, there was substantial evidence supporting the OHR’s determination that the non-discriminatory reasons asserted by NEA for its actions were not pretext for discrimination. Thus, the court affirmed OHR’s no probable cause determination.

The breast-feeding inquiry. As to mother’s milk, a splintered Supreme Court of Ohio, despite accepting a discretionary appeal to determine whether Ohio law prohibits discrimination against female employees because of lactation, chose not to give the clear direction so sorely needed.

In this case (Allen v Totes/Isotoner Corp), an employee was fired for taking breaks to pump her breasts after giving birth several months prior. A trial court entered summary judgment for her employer, reasoning that, since the employee had given birth five months earlier, and women who choose not to breast feed or pump their breasts do not continue to lactate for five months, the employee’s condition was not related to pregnancy, but rather to breastfeeding – which was not protected as gender discrimination.

An appeals court affirmed, holding that the employee had not presented a prima facie case of sex bias based on pregnancy, and that she wasn’t fired because she was lactating and needed to pump her breasts but, rather, because she took unauthorized extra breaks.

With no discussion on the reach of protections against sex or pregnancy bias, or whether the employee presented a prima facie case of discrimination, the high court’s per curiam opinion merely affirms based on the issue of pretext; the employee failed to show her employer’s justification for firing her – not following directions – was pretext for bias.

Three justices, two concurring in the judgment only and one dissenting, criticized the failure of the per curiam opinion to answer the question they believed was incorrectly answered by the trial court – all three justices would find that Ohio law protects against employment discrimination based on lactation.

One of these justices pointed out that Ohio’s Pregnancy Discrimination Act uses broad language, protecting employees ‘“because of or on the basis of pregnancy” and states that ‘[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”’

The same justice found it curious that the trial court would find lactation related to breast feeding but not to pregnancy. “[G]iven the physiological aspects of lactation, I have little trouble concluding that lactation also has a clear, undeniable nexus with pregnancy and with childbirth,” she wrote.

I’m sure many, many working mothers would agree. And they would like to know the answer to the question put to the state supreme court as soon as possible. Does Ohio law protect women from employment discrimination based on breast feeding?

If the state supreme court will not answer the question, how will they know?

Add a Comment