Author: Tula Connell

[Welcome Lewis Maltby, and Host Tula Connell.] [As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread.  – bev]

Can They Do That? Retaking Our Fundamental Rights in the Workplace

Lynn Gobbell was fired because her boss didn’t like the John Kerry bumper sticker on her car.

In Colorado, teacher Meg Spohn got the pink slip from DeVry University for complaining about her job on her personal blog.

At Best Lock Company in Indiana, workers are axed for social drinking because the company president believes it’s a sin.

Can Employers do that?

You betcha, writes human rights attorney Lewis Maltby. He’s president and founder of the National Workrights Institute, which he formed after leading the American Civil Liberties Union office on free speech and privacy protection in the corporate world.

Before heading up the Workrights Institute, Maltby had spent time in the corporate world where “learning how to run a productive, profitable company without violating employees’ human rights” became the focus of his life. Right up front in “Can They Do That,” Maltby gets to the crux of the misconception most people have when facing unfair treatment on the job.

The United States Constitution applies to the government, not to corporations.

Not to corporations and most certainly not to the workers who enter those corporations hoping to get a paycheck. This comes as a surprise to many. Here at the AFL-CIO, we get e-mails from people detailing how their employer unfairly fired them, and asking what they can do about it. Chances are, if they’re not in a union, and if the action didn’t violate any Equal Employment Opportunity laws, the answer is: Not much.

And even if a company does violate a worker’s legal rights, many corporations have got that covered, too:

Almost 20 percent of employers today require all employees to agree in advance not to go to court if the company violates their legal rights…If you don’t agree, you don’t get the job.

And as Maltby notes, even joining a union “has become a dangerous undertaking.”

Over 8,000 employees are fired every year simply for trying to join [a union]. Technically, this kind of firing is illegal, but the penalties are so trivial that employers just pay the fines and keep breaking the law.

Which is why we have been trying so hard to pass the Employee Free Choice Act. Unlike many books on employment, Maltby includes an entire chapter overviewing unions and labor laws and ending with his personal recollection of helping move Wisconsin Republican Sen. Herbert Kohl toward sponsorship of the Employee Free Choice Act.

Unionization is covered by the National Labor Relations Act, an act of Congress, and union workers covered by contracts they negotiate with their employers. But the nation’s employment laws have historically been governed by common law (court decisions) and so for those not represented by a union, the primarily law of the land is “at-will employment.” In short: Management can fire you at will, for any reason, or no reason.

Maltby highlights high-tech workplace intrusion: from computer monitoring to video spying on women in the company restroom (yep, legal, except in California and Rhode Island). He also takes a look at the future of privacy at the workplace, and predicts an increasing use of GPS and the likely adoption of biometrics on the horizon. Horrifyingly, Maltby writes that some employers are beginning to install silicon chips into employees’ bodies as an identification system—you know, the kind you get implanted in your pet.

And then there’s the MMPI, the Minnesota Multiphasic Personality Inventory, a job-screening psychology test taken by 2 million people as part of the employment application process. The test has been translated into 115 languages, and 89 of the Fortune 100 employers use it. An all-American export.

Throughout, Maltby filters the book with real-life workplace horror stories—the kind we see by the droves whenever the AFL-CIO community affiliate Working America holds its My Bad Boss contest. (If anyone tells you employees don’t need unions in today’s 21st workplace, send them to the My Bad Boss site.)

Maltby’s view of the judicial system’s approach to workers’ rights—especially the Supreme Court—also would shock much of the public. In short:

Even when there is a law to protect your rights on the job, you often won’t receive justice. Judges work overtime to find ways to take away, or water down, the rights given by the legislature.

And he blasts away another holy grail of American mythology: The myth of impartial justice.

Because judges are politicians, they respond to political pressures. They favor prosecutors over defense attorneys in criminal cases because the public wants them to be tough on crime….And they favor employers over employees because employers have more political influence than employees.

Next, Maltby will tell us that the media in the United States are biased.

Maltby ends the book with chapters detailing our workplace rights and how we can win our rights, which includes joining a union. In short, the only way we can take back our workplace is joining with each other. Because as Maltby says:

There isn’t much you can do alone to protect yourself.

This book should be part of every high school curricula. Millions of Americans plunge into the job force with no idea that they leave their constitutional rights at the door.

Help me welcome Lewis Maltby.

Tags: AFL-CIO, at-will employment, Can They Do That? privacy, Can They Do That? Retaking Our Fundamental Rights in the Workplace, Employee Free Choice Act, employment law, justice, Labor, Lewis Maltby, National Labor Relations Act, National Workrights Institute, Tula Connell, unions, workplace

 

There’s a lot more that’s frozen in D.C. this week than the usual fallout from a blizzard. The brains of many Senate Republicans are on ice as well. The House passed a jobs bill in December, but the Senate is dawdling, and worse—threatening to pass bits and pieces, taking apart what should be a comprehensive approach to jobs and turning it into minced cabbage. Or, as Sen. Jon Kyl (R-Ariz.) put it, Democrats shouldn’t advertise the package as jobs legislation

because it’s just extending a bunch of tax policy and related items that we need to do.

Only today did the Senate Finance Committee release its first take on jobs. The immediate need is for passage of unemployment insurance (UI) because it will expire for millions of workers Feb. 28, unless Congress—specifically, the Senate—takes action. COBRA also must be extended to help unemployed workers maintain health care.

The White House’s new economic report estimates the economy would create an average of 95,000 jobs a month this year, rising to 190,000 a month on average in 2011.

Yet there must be 100,000 jobs created per month, just to stay even, let alone fill the gaping hole that is the nation’s unemployment crisis. The nation needs more than 10 million jobs to get back to 5 percent unemployment, the rate we had before the recession started.

The economy lost 20,000 jobs last month, and the rate of unemployment declined to 9.7 percent, a figure the Economic Policy Institute (EPI) describes as a statistical blip, not the beginning of a trend toward full employment because the January data was based on differing surveys. As EPI economist Heidi Shierholtz describes it, this apples-to-oranges comparison means the drop in the monthly unemployment rate

can largely be attributed to the higher volatility of the much smaller household survey. Given what happened in the establishment survey, one would have expected the unemployment rate to hold steady or increase slightly in January.

The White House is forecasting the jobless rate will average 10 percent this year. But the generic jobless rate—as bad as it is—hides a lot. Here’s a look at the hardest hit in the jobs crisis.

The workers losing jobs are those who had almost no income to begin with. As Bob Herbert pointed out this week:

The highest group, with household incomes of $150,000 or more, had an unemployment rate during that quarter of 3.2 percent. The next highest, with incomes of $100,000 to $149,999, had an unemployment rate of 4 percent.

Contrast those figures with the unemployment rate of the lowest group, which had annual household incomes of $12,499 or less. The unemployment rate of that group during the fourth quarter of last year was a staggering 30.8 percent. That’s more than five points higher than the overall jobless rate at the height of the Depression.

The jobless rate of 16.5 percent for black workers is much higher than the national jobless rate of 9.7 percent. The Christian Science Monitor goes on to point out that the jobless rate is astronomically higher for black teens—43.8 percent—than for white teens, at 23.5 percent.

Long-term unemployment (those without a job for 27 weeks or longer), is off the charts. More than 40 percent of the nation’s unemployed workers are without a job for more than six months, a new record. In January, that means 6.3 million unemployed workers have been out of a job for more than six months.

The longer workers are out of a job, the harder it is for them to get one. With the massive numbers of unemployed workers, employers are more likely to hire a worker who is more recently unemployed, than one who has been out for months, skills and other factors being equal. This is why the group on the Hill needs to extend UI ASAP. According to National Employment Law Project estimates, of the nearly 1.2 million U.S. workers facing a cut off of benefits in March alone:

• 380,000 workers will exhaust their 26 weeks of state benefits without accessing the temporary EUC [emergency unemployment compensation] extension program or the permanent federal program of Extended Benefits.
• Another 814,000 workers will not be eligible to continue receiving EUC past their current tier of benefits.

Richard Duncan, who works for the Tennessee AFL-CIO technical assistance program, has met many unemployed workers. The assistance program helps union workers who have been laid off (see video above).

I’ve traveled the state of Tennessee and seen an enormous number of union brothers and sisters lose their jobs. Since 2006, I’ve seen the same people. They lose their job at one facility. Then they go to another facility, then there’s an additional layoff and they lose their job again.

This downward cycle must be broken. And the ice in brain and heart, melted.

 

Jack Cafferty at CNN this week asked viewers one of his seemingly routine questions. But the responses to: “How has definition of ‘middle-class American’ changed?” reveal a cataclysmic shift in our nation’s economic identity.

Gary from El Centro, Calif., summed up the vast majority of the nearly 200 responses when he replied:

You should ask this question of the three or four people in the country still remaining in the middle class.

The comments reflect more than the run-of-the-mill griping about taxes or middle-aged discontent. They demonstrate a visceral understanding of the deep forces underlying the dramatic change that in recent decades has eroded the solid financial footing of America’s working families—America’s middle class.

In short, the American public knows what most lawmakers in Washington and policymakers around the country have yet to figure out: The nation is losing its middle-class backbone and bifurcating into a have/have not country.

As Karen from Idaho Falls writes on Cafferty’s site:

In my world, there is no middle class–only the very rich, the rich, the poor, and the very poor. Most of us are hanging on to being “poor” by our fingernails and hoping that we won’t join the ever growing “very poor” class. Somewhere along the line, “middle class” disappeared.

The not-so-Great Recession is just the latest and loudest part of the long decline of the middle class. From the end of World War II to the early 1970s, wages grew along with productivity. But since then, wages have been stagnant or declining—while productivity skyrocketed. The decline in a family’s earning power was offset by the entrance of vast numbers of women in the labor market—and then by wage-earners holding multiple jobs. By the late 1990s, debt—from second mortgages or credit cards—kept the middle class afloat. And now what is revealed is a middle class held together by nothing more than string.

One of the most consequential but least recognized aspects of the current economic disaster is the growing length of time workers are without jobs. In December, the average jobless worker had been unemployed for 29.1 weeks. In contrast, when the recession began in 2007, the average unemployed person had been out of work for 16.5 weeks.

At Economix blog, Catherine Rampell points out in an tellingly titled post, “A Growing Underclass,” that the longer unemployed workers stay out of work, the less likely they may be to find work.

First, their skills may deteriorate or become obsolete—especially if they are in a dynamically changing industry like high technology.

Second, the stigma—both internal and external—of their unemployment grows. Studies have linked job loss to declines in self-worth and self-esteem, meaning these people will probably make less compelling job candidates.

So, even if there were jobs available—there are now more than six unemployed workers for every one job—getting one becomes harder and harder the longer you’re out of work. Jobs are so few, in fact, even a weekly columnist at Forbes had this to say:

For many, many Americans there are no jobs and few prospects. For them the Great Recession is not a cute aphorism but a major cataclysm.

Long-term joblessness is one more nail in the middle class coffin. As Working-Class Perspectives describes it:

Unlike in past business cycles, the middle class has not been able to recover so far, despite increases in productivity and stock prices. In “America Without a Middle Class,” Elizabeth Warren documents how the de facto unemployment rate, credit debt, “underwater” mortgages, increased use of food stamps, personal bankruptcies, and the loss of pensions and health care have all dramatically increased. Middle-class households have depleted their savings and are increasingly accruing debt to pay for college, health care, and other expenses.

Some experts believe that the decline in jobs will only continue. For example, Alexandra Levit predicts significant losses in a number of key industries between 2008 and 2018: semiconductor manufacturing (33.7 percent), apparel manufacturing (57 percent), newspaper publishers (24.8 percent)….Corporations are moving many of these jobs offshore or replacing them with technology rather than paying middle-class wages and benefits. The economists are right that new jobs are being created in place of these. But as Jack Metzgar discussed last week, most of the new jobs offer even lower wages and benefits and require less education.

Jobs are offshored while the jobs that remain in the United States are low-wage, with little affordable health care or retirement options. Meanwhile, the smooth of face and soft of hand financial wizards who turn their noses up at the industrial manufacturing sector fail to realize that when the United States loses its ability to make things, it also loses the research and development power that fueled the nation to greatness. And it loses something a lot more. Louis Uchitelle interviews Sen. Sherrod Brown (D-Ohio) about the humiliation of building a new World Trade Center with no glass made in the United States:

“Imagine China,” he said in an interview, “building a huge structure intended to be an important national symbol and importing glass from the United States to build it. There is no way the Chinese would do that.”

And a low-wage job nation fuels income inequality. This from a stunning report by economist John Schmit at the Center for Economic and Policy Research:

From a peak just before the 1929 stock market crash through the early 1950s, wage and income inequality, broadly measured, were declining. From the early 1950s through the late 1970s, inequality was flat, or even falling slightly. Since the late 1970s, however, inequality has skyrocketed, climbing back to levels last seen in the 1920s. In 1979, for example, the top one percent of all U.S. taxpayers received about 8 percent of national income; by 2007, the top one percent received over 18 percent. If we include income from capital gains in the calculation, the increase in inequality is even sharper, with the top one percent capturing 10 percent of all income in 1979, but over 23 percent in 2007.

Back at Cafferty’s site, Chad from Los Angeles knows why:

The middle class has turned into the “peasant class.” We have been taken over by a few wealthy people who control our politicians and government. We have become an Aristocracy. Except the ones in control are not royalty, they are businessmen hiding behind a cloak of deception that is Corporate America.

In the short term, critical steps must be taken for immediate relief. The first is getting the Senate to extend unemployment insurance (UI) for the long-term unemployed. As usual, the House already has acted, extending UI in December, while senators dither. (Click here to tell your lawmakers it’s time to act.) Extending UI is part of the jobs initiative the AFL-CIO is pushing for immediate relief for jobless workers.

But before the current crisis fades, the nation must begin to reverse the more than 40-year trend in which the gap widens between rich and poor and the middle class falls out of the bottom.

Silas from Boston—a city not unfamiliar with fomenting revolutions—offers an intriguing insight:

We’ve allowed the “upper” class to become too big to fail. As a result, the middle class is an endangered species which has to bail out the class that got us into this mess to begin with. This is how the French Revolution started.

 

Join me in welcoming Dr. Jody Heymann, professor in the Faculties of Medicine and Arts at McGill University, where she is founding director of the Institute for Health and Social Policy and founding chair of the Project on Global Working Families. She also is an adjunct associate professor at the Harvard School of Public Health and Harvard Medical School. Dr. Heymann has authored and edited more than 150 publications, including Raising the Global Floor and Forgotten Families. She has led the development of a unique graduate and undergraduate multidisciplinary training program that bridges research and policy development with students gaining experience in 18 countries. Also, check out the interactive world legal rights database created by Dr. Heymann and her team.

When it comes to ensuring working families have the bread-and-butter basics, the United States is an outlier, there’s no doubt. For example:

• 177 nations guarantee paid leave for new mothers; the U.S. does not.
• 74 nations guarantee paid leave for new fathers; the U.S. does not.
• 132 nations guarantee breastfeeding breaks at work; the U.S. does not.
• 163 nations guarantee paid sick leave; the U.S. does not.
• 48 nations guarantee paid time off to care for children’s health; the U.S. does not.
• 41 nations provide leave that can be used for child education needs; the U.S. does not.
• 33 nations provide paid leave to care for adult family members; the U.S. does not.

The cost to Americans is profound.

• Every year Americans lose income and homes when they get sick with serious illnesses.
• Restaurant workers, health care providers and co-workers spread disease when they go to work with infectious diseases.
• Infants fall sick at 1.5-5 times the rate when they are not breastfeed—by mothers who have little choice.

For decades, we’ve been hearing none of these issues can be addressed because of the economic cost. The argument has been that if mothers and fathers could afford to care for their newborn children, we’d have fewer jobs; America would be less competitive; it would cost too much. If people with flu stayed home when they were sick, if Americans with cancer didn’t fear losing their job and home when they got sick, it’d cost too much for our country. Well, it turns out not to be true. Some 57 million Americans do not get paid leave, or even sometimes unpaid leave, to stay home sick or to care for sick relatives.

In Raising the Global Floor, a book that reports on 10 years of research carried out at Harvard and McGill, Alison Earle and I report the findings of the largest global study to look at working conditions, how they affect individual men and women and national economies in 190 of the world’s 192 countries.

Can the United States afford to improve working conditions?

• Globally, none of the protections described above are linked with lower levels of economic competitiveness or employment.
• Of the world’s 15 most competitive countries, 14 provide paid sick leave, 13 guarantee paid leave for new mothers, 12 provide paid leave for new fathers, 11 provide paid leave to care for children’s health needs, eight provide paid leave to care for adult family members and seven guarantee breastfeeding breaks.
• The majority of the 13 Organization for Economic Cooperation and Development (OECD) countries with consistently low unemployment rates provide paid leave for new mothers (12), paid sick leave (11), breastfeeding breaks (9), paid leave for new fathers (9) and paid leave to care for children’s health needs (8).

We can afford the change.  What we can’t afford is the status quo.