We have heard for some time that Michelle Obama’s pet concerns on the campaign trail, which she hoped to be able to continue while in the White House – and will indeed be able to after last week’s dramatic election finish for her husband, President-Elect Barack – are helping families create a healthy work/life balance and easing the struggles for military families.

It’s no wonder the former is an issue that’s close to Mrs. Obama’s heart.  This article from the UK-based Telegraph newspaper talks about her own work/life balance struggles, in three distinct phases of her life: while growing up on the South Side of Chicago and seeing an ailing father continue to work hard, and leave business matters at the office; while herself transitioning from the legal field to civic and community work after marrying Barack and having their two daughters, Malia and Sasha; and most recently while Barack was on the campaign trail.

Mrs. Obama even wrote a heartfelt essay on the topic of work/life balance last month on the popular BlogHer community of women bloggers.  Here’s how she spells out the plight for working women:

As we all know, our country is in the midst of a major economic crisis.  And we’re all feeling the effects.  …

And folks are feeling it at the workplace.  Because right now, thousands of women across the country don’t have family leave at their jobs.  And those who do can’t afford to take it because it’s not paid.  And 22 million working women don’t have a single paid sick day.

That’s just unacceptable.  Families shouldn’t be punished because someone gets sick or has an emergency.

This is from the employee perspective, but Obama’s cause has direct implications for small and midsize business leaders.  Morra Aarons-Mele, a graduate student specializing in women and leadership, framed this exceptionally well recently on The Huffington Post,

Why should we care about “work life” issues when our savings and retirement funds are literally halving by the day?  Because “work life,” as nondescript as it may sound, is the stuff that keeps American families afloat.  Work life refers to issues ranging from sick leave to health care to early education and child care.  It also encompasses flexibility and better work-life balance, which have strong effects on companies’ bottom lines and employee productivity.

So what would organizations’ employee engagement activities geared toward helping workers achieve a more harmonious balance look like – ideally – four or eight years from now?  Obama hinted at this during a plenary address she gave at our annual small business leadership conference two years ago, when she spoke about creating relationships between businesses and the community.

Community organizing didn’t just help Barack become President-Elect; it has also helped his wife use resources at her present employer, the University of Chicago (and later its Hospitals) to transcend both entities from simply a “name” in their neighborhood to a visible, tangible source of inspiration and assistance.

As we spelled out in our article summarizing her remarks at our event, Obama pointed to the creation of such initiatives as school “Principal-For-A-Day” and community fitness programs as ways to not only bring the University’s and Hospitals’ employees out in the open, but to better connect their passions to their work.

This model has been readily adopted, to great effect, by some of the firms we’ve since honored as Top Small Workplaces.  For instance, 2008 winner The Redwoods Group, an insurance provider for YMCAs and Jewish Community Organizations that’s based in North Carolina, requires its 100 employees to volunteer 40 hours of service annually to nonprofits.  A condition of their employment, the company argues this has contributed directly to their steady employee growth (27% over the last two years) – including the ability to recruit cost effectively – and industry-low turnover (less than 6% on average the last two years).

So one plausible – again, ideal – work/life balance scenario is the government serving an encouraging, perhaps advisory role in helping small business leaders adjust their employee engagement best practices so employees can focus their passions on helping their communities, while at the same time benefitting the organization through enhanced workplace team building and lower rates of absenteeism and presenteeism.

Do you concur?  Or do you see Obama’s work/life-related efforts playing out differently?

Cross posted at Winning Workplaces

Many federal laws protect the rights of working men and women, but recent Supreme Court decisions have made some of these laws a dead letter, and employers know they can violate them with virtual impunity. As a result, today’s workers are defenseless against certain blatant violations of their rights.

The most recent of these decisions, Ledbetter v. Goodyear Tire & Rubber Co. (2007), concerns Lilly Ledbetter, who tried to enforce the prohibition against gender wage discrimination in the 1964 Civil Rights Act. Ledbetter worked for the Goodyear Tire and Rubber Company from 1979 to 1998, during which period Goodyear paid her less than her male counterparts. Like most employers, Goodyear keeps salaries secret. Ledbetter learned of the discrimination only when she retired; by then the pay discrepancy had become very large. When she sued for back pay to make up for the accumulated shortfall, a 5-to-4 majority ruled that because she hadn’t complained to the Equal Employment Opportunity Commission within 180 days after the discriminatory act first occurred–when she hadn’t even known she was being discriminated against–she was entitled to absolutely nothing. At a time when women on average still earn significantly less than only a fraction of similarly qualified men, the decision creates an often insurmountable barrier to the right to equal pay.

A worker’s right to receive medical benefits through an employer’s health plan is supposed to be guaranteed by the federal Employee Retirement Income Security Act (ERISA). Supreme Court opinions have, however, interpreted ERISA as effectively pre-empting lawsuits predicated on a failure to provide those benefits. At the same time, the Court has interpreted ERISA to provide an inadequate set of federal remedies, opening, as one distinguished lower court judge put it five years ago, a “gaping wound” in the statute. Thus, if an HMO improperly denies coverage of a particular medical procedure or a hospital stay under ERISA, the patient must either pay for the procedure personally and then sue for reimbursement–a financial impossibility for most workers–or seek an emergency court order forcing the HMO to provide the needed benefits. HMO officials understand very well that both remedies are wholly impracticable for most workers.

The 4.7 million employees of state governments have lost even the possibility of enforcing their rights under such important federal laws as the Fair Labor Standards Act, which governs minimum wages and overtime; the Age Discrimination in Employment Act; and the Americans With Disabilities Act. These statutes expressly authorize state workers to sue to enforce their rights; yet in Alden v. Maine (1999), a 5-to-4 majority of the Court held that if states violate these laws, state sovereignty blocks victims from suing.

One final example: undocumented workers in the United States are legally entitled to many of the same rights as American citizens. In 2002, however, the usual 5-to-4 majority ruled that an employer who illegally fired an undocumented union organizer did not have to release back pay. Although it is technically illegal to fire any worker for joining a union, resisting sexual harassment, complaining about discrimination or receiving less than the minimum wage, after that decision no prudent undocumented worker would dare to complain because she would have no remedy if she were fired for having done so. The decision–Hoffman Plastic Compounds v. NLRB (2002)–thus encourages employers to hire undocumented workers, since they can violate the workers’ rights with impunity.

Many of these injustices could be corrected with legislation, but without a progressive Congress and president, HMOs and business groups will be able to block any significant changes. Which is another reason why the upcoming elections are so crucial.

Cross-posted in The Nation’s November 3, 2008, edition.

About the Author: Eric Schnapper is a professor of law at the University of Washington School of Law, teaching Civil Rights, Civil Procedure and Employment Discrimination.  He served for twenty-five years as an assistant counsel to the NAACP Legal Defense and Educational Fund, Inc., specializing in appellate litigation and legislative activities.

With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.

Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about.  Although I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.

President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.

President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.

Workplace Anti-Discrimination and Civil Rights: President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.

President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.

Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term.  This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums.  Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care.  Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases.  In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the Civil Rights Act of 1991 amended Title VII.  Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).

Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments.  As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available.  (This would entail a newly-constituted Supreme Court overruling the Bivens case of Bush v. Lucas).  Such legislation would also provide whistleblowers under Sarbanes-Oxley and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.

Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country - the institution of just cause workplace protection as the default rule for American employees.

All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.

Cross-posted from the Workplace Prof Blog.

About the Author: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

With the election of a new president, there naturally is a lot of talk about what legislation we might expect from the Obama administration and substantial Democratic majority in Congress.  High on everyone’s list is the Employee Free Choice Act — a bill that would make it easier for workers to form and join unions.  But perhaps you are not convinced that unions are the solution to making things better for workers, either in your workplace or any workplace.  Guess what:  you should support the Employee Free Choice Act anyway, and here’s why:

The specter of EFCA passage has a lot of employers — and their advisors — running scared.  Right now, employers who strongly oppose having unions in their workplace can hire specialists — let’s call them “unionbusters,” since that’s what they are — to use all legal and often illegal means to discourage workers from union organizing activity.  Guest blogger Art Levine, in an article published last year called Unionbusting Confidential, talked about the strategies he learned about while attending one of the many seminars that law firms sponsor for employers who want to remain union-free:

What if we felt like saying a lot of anti-union stuff to our workers? [The presenter Michael] Lotito introduced a segment called “You Can Say It.” Could we tell our workers, for instance, that a union had held strike at a nearby facility only to find that all the strikers had been replaced—and that the same could happen to the employees here? Sure, said Lotito. “It’s lawful.” He added, “What happens if this statement is a lie? They didn’t have another strike, there were no replacements? It’s still lawful: The labor board doesn’t really care if people are lying.”

(See Unionbusting Confidential.) (Note: Obama’s appointments to the labor board (NLRB) might care a little more about employers’ lies than those appointed by George W. Bush, but I digress.)

However, some of the tactics unionbusters use to discourage union organizing simply aren’t going to fly under EFCA.  Refusing to bargain is one of the tactics described by Levine, where employers say “I’m not inclined to agree to that proposal at this time” when they do not intend to agree to any proposal at any time.  This strategy will be countered by a provision that allows either side to request mediation after 90 days with the sides at an impasse.  (See Why Mediation and Arbitration Rules are Needed.)

One of the most egregious strategies, firing workers for union organizing, will also be penalized more heavily.  Levine writes that employers are being advised,

[Firing workers] was possible to do, said [Michael Stief of Jackson Lewis], as long as you were careful to do so for other reasons. “Union sympathizers aren’t entitled to any more protection than other workers,” he explained. But the firing could not be linked to their union activity.

One survey estimates that employees are fired in up to 25% of organizing efforts.  (See Why Stronger Penalties are Needed.)  EFCA increases the damages due to fired workers to three times their back pay, and allows employees to go to court to enjoin their employers from taking punitive actions.

But what really makes EFCA a win-win for everyone?  It’s that with the real threat of unionization, employers are going to be forced to make their workplaces better — to convince their employees that they don’t need unions. As one management lawyer recently pointed out, apparently with no sense of irony,

Making nonunion workplaces better for employees could be the real unintended consequence of the Employee Free Choice Act.

(See How Employers Can Mitigate ‘Card Check.’) (Hat tip to Matt Stoller of Open Left.)

This lawyer is encouraging employers to develop programs now “that will be better than
anything a union could provide, including steps to increase employee involvement and to allow peer resolution of disputes.”  Steps to increase employee involvement?  Allowing peer resolution of disputes?  All at a level better than unions? Those things all sound pretty good to me, and just maybe, they weren’t merely an “unintended consequence.”

According to Levine, unionbusters are already advising their employers to “institute an open-door policy with employees, encouraging them to air any grievances or concerns fully.”  Because it’s the right thing to do?  Not really — it’s so they can “sniff out whether there was unionization afoot.”  But what if they had to do it for real?

Wouldn’t it be wonderful if employers and unions were finally engaged in a race to the top, instead of to the bottom?  If the realities of competition made both the employer and the union be at the top of their games when making working conditions more hospitable? If workers finally had the upper hand when it comes to a more democratic and fair workplace?

Let’s put the unionbusters to work actually trying to make the workplace better.  If they really believe that unions are bad for business, then they’re going to have to convince their employees that they’re genuinely willing to go the extra mile to make things better for their workers — farther than a union is likely to go.  If they can’t make that case, then employees will finally have a real shot at forming a union and empowering themselves that way.

Either way, with EFCA’s passage, we have an unprecedented opportunity to get rid of some of the imbalances that currently exist.  Because in this economic climate, with employers already laying off employees left and right, workers are otherwise going to be even more powerless, and the unionbusters even more empowered to ensure that employers don’t feel the sting like their workers do.

One Million Signatures for the Employee Free Choice Act:  add your signature today!

Disclaimer: This post is not meant to be an endorsement of any party or candidate but, rather, an exploration of issues affecting small business as shaped by what will *most likely* happen at the polls today.

Today’s election will be historic, no matter the outcome.  If you’re anything near the political junkie that I am, you’ve been watching for the last few days the result projections of some of the major pundits from the basic and cable news networks, as well as from some of the bookies.

If there is a commonality here, it is that Barack Obama looks poised to win fairly big or really big; and that the Democrats will make gains in both the House and Senate – although the Senate “magic 60″ number is still a far cry as of this writing.

Yet, if we assume the above, as David Gergen has noted on CNN, even without the Dems getting a filibuster-proof majority in the Senate, they would still have a greatly enhanced ability to push through legislation that supports their agenda, with a president ready (on most issues) to sign it into law.

How would this scenario affect small businesses?  A look at four issues that are central to their survival and success – two of which have been covered at length by candidates of the two major parties and the media, and two of which have been largely ignored – offer a clue.

Taxes

• Obama’s plan, as detailed on his website, stresses cuts in capital gains taxes and additional tax cuts for corporations that create jobs in the U.S.
• The Democratic Party website also talks about efforts of the majority Democratic Congress (elected in 2006) to “slash regulations on small companies.”
• Point of contention: The now-familiar “Joe the Plumber” caveat: Entrepreneurs who start businesses that generate more than $250,000 in annual revenues would see their taxes go up – albeit to 1990s levels.

Healthcare

• Obama: Establishment of a new Small Business Health Tax Credit to help small firms provide affordable health insurance to their employees.  He has also talked about creating an insurance pool that individuals and small firms can pay into and receive the same benefits that members of Congress receive.
• Democratic Party: Emphasis on cutting bureaucratic waste – chiefly by standardizing electronic medical records – that would, along with incentives to increase competition among health plans, reduce company-paid premiums over time.
• Point of contention: Nationalizing healthcare, which would mandate the coverage of children, would keep costs high.

Changes in Labor Laws – Specifically Enactment of the Employee Free Choice Act (EFCA)

• Obama: A Proponent of the EFCA; wants to make it easier for employees to form unions.
• Democratic Party: Behind the EFCA. They also list a goal of raising the minimum wage.
• Point of contention: The EFCA and federal increase in the minimum wage are both hotly contested issues, with adoption of both falling pretty squarely in the “workers, yay; business leaders, nay” columns.  Since the federal minimum wage was just raised in July, the EFCA bill, if it were highly modified, might stand a better chance of gaining the support of small business leaders in the shorter term.

Immigration Reform

• Obama: Reduce the bureaucracy that slows the process for illegal immigrants to earn legal status, which he argues will “meet the demand for jobs that employers cannot fill.”  Crack down on employers that hire undocumented immigrants.
• Democratic Party: Supports “economic development in migrant-sending nations, to reduce incentives to come to the United States illegally.” Long-term, this would ensure that tax dollars from businesses as well as individuals aren’t stretched as thin.  The party also echoes Obama’s above concerns.
• Point of contention: This is a sticking point for leaders of some smaller firms that are actively hiring undocumented workers.  Most other business leaders seem concerned that their taxes are not raised for inadequate or unnecessary measures to secure our borders.

So, would a fly on the wall of a small organization in February 2009 see a noticably different landscape than in the same firm today?  Probably not.  Still, it doesn’t hurt to project how the probable shift in the balance of power in Washington after today will play out for these enterprises.  Who knows, it may even shape smaller-scale efforts – the things we love to talk about and help our clients refine – like employee engagement best practices and workplace team building.

What say you?

(Cross-posted from Winning Workplaces Blog)

We need a Labor Secretary in the mold of Francis Perkins, whose top priority was to help the working man.

In recent days, colleagues have asked me to write about the near-collapse of the economy. My first response was to decline — recognizing all too well that I, like most of our nation’s leaders, was not entirely clear about what was going on. I’ve always been a big believer that wisdom is about knowing when to keep your mouth shut (or fingers away from the keyboard). As Proverbs 17:28 says, “Even a fool, when he keeps silent, is counted wise. When he shuts his lips, he is thought to be discerning.”

Although I must admit that I am still not completely clear about what all has occurred and has not occurred, I am more convinced than ever that we need a Secretary of Labor who cares about workers and who will at least try to address issues faced by workers. Unfortunately for the nation, we have a Secretary of Labor who is Missing in Action.

When the unemployment figures came out last week, Secretary of Labor Elaine Chao issued a one-sentence statement: “Today’s employment report provides further evidence of the need for the House of Representatives to pass an economic rescue package today, before it adjourns, which will protect Main Street America and mitigate further job loss,” said U.S. Secretary of Labor Elaine L. Chao. That’s it. That’s all she could muster on the subject.

The day before, she’d given a lengthy speech to the Chamber of Commerce decrying the “Europeanization” of the workplace and denigrating unions. Meanwhile, her Wage and Hour Administrator, Alexander Passantino, claims the Division is doing a great job enforcing wage and hour laws. I’m sure the Education and Training Administrator says the agency is doing a great job there too. Throughout Chao’s speeches over the last year she’s been claiming what a great job the Bush Administration is doing for working people. Well, the emperor has no clothes.

In the midst of the economic meltdown, dramatically rising unemployment figures, military-style immigration raids in workplaces, employers stealing wages like there’s no tomorrow, young people unprepared for today’s jobs — let alone tomorrow’s — and assaults against unions and the right to organize at an all-time high, we need a Secretary of Labor who sees it as his or her job to protect workers. The Secretary of Labor must be the preacher in the bully pulpit for better working conditions for all the nation’s workers. Even if she can’t do anything, she could reach out and talk with workers.

Frances Perkins.

Frances Perkins was the Secretary of Labor appointed by Franklin D Roosevelt in 1932 to help him address the economic crisis left him by eight years of Coolidge and Hoover leadership.

She came to Washington, D.C. with a mission — in her words, to serve God, FDR and the working man. She came with a vision. She wanted to get people back to work, pass national standards for wage payment, and establish a social security system. She and her colleagues created the jobs programs that built many of our nation’s parks and bridges, she passed the Fair Labor Standards Act, the most comprehensive wage protection law in the nation, and she helped design the Social Security System.

Learning from the lessons of Frances Perkins, here’s what the new Secretary of Labor should do:

First, advocate stopping the workplace immigration raids. When Frances Perkins took over, the Department of Labor was responsible for workplace raids and she stopped them immediately. They were wrong then and they are wrong today.

Although Homeland Security, not Labor, has jurisdiction for Immigration and Customs Enforcement (ICE), the Labor Secretary should speak forcefully against this intimidation of workers that is a gross waste of taxpayer money.

Second, enforce the wage and hour laws in meaningful ways. Employers are stealing billions of dollars annually from the paychecks of millions of workers. Wage theft is a national crisis and the Department of Labor is asleep at the wheel. Just as an unregulated banking industry has brought forth catastrophe, unregulated workplaces have enabled employers to steal wages from workers on a mass scale. In 1941, Frances Perkins had 1,500 investigators in the field visiting 12 percent of the country’s workplaces to ensure that employers were paying people legally. Today, with more than 10 times as many workers covered by the Fair Labor Standards Act, there are half as many investigators. Employers know that the chances of getting caught stealing wages is minuscule and that if they are caught, the consequences are insignificant. The Secretary must go after wage theft. What better economic stimulus for the society than workers getting the wages they are owed and spending them in their communities?

Third, lead the charge in supporting unemployed workers. Unemployment insurance should be available widely to workers and job creation strategies should be pursued aggressively both through public incentives for private job creation and public jobs programs. Let’s create those green jobs everyone is talking about.

Fourth, commit to developing the 21st-century supports America’s workers need. During Perkins’s time, she focused on putting in place social security for America’s workers. Today, we need a national health care program. Forty-seven million workers and their families without health care is not in the best interest of workers or the nation as a whole. The Secretary of Labor should play a role in guaranteeing health care to all Americans.

Fifth, support the fundamental rights of all workers to organize into unions of their choice. Although Perkins wasn’t the first choice of labor unions for secretary, she overcame their hesitations with her steadfast support for workers’ rights to organize in the workplace. Elaine Chao, in contrast, has used her public voice to attack the Employee Free Choice Act, the most significant labor law reform to come along in decades.

When the economy is in shambles, it is America’s workers who take the biggest hit. Perhaps in the coming weeks and months, we will all understand better what has happened to our economy. But as we move forward as a nation in addressing the crisis, we need a Secretary of Labor who knows workers, cares for their concerns and speaks up for them. Our current Secretary of Labor is missing in action. We need to put the Labor back in Secretary of Labor.

About the Author: Kim Bobo, Founder and Executive Director of Interfaith Worker Justice, writes the “Dispatches from the Workplace” column for the online magazine Religion Dispatches. She is the author of Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid — And What We Can Do About It (forthcoming in December from the New Press) and the co-author of Organizing for Social Change, the best-selling manual on progressive activism in the U.S.

This article originally appeared on the God’s Politics Blog (www.godspolitics.com).

Do not bail out the fat cats.

Voters made that perfectly clear, and their re-election-obsessed congressional representatives took heed.

Delaying a Wall Street bailout wasn’t wise for the international economy, but chalk up points for the worker bees.

They finally got someone’s attention in Washington!

Nobody bails me out if I make bad financial decisions.

And, while we’re at it: No more multi-million-dollar parachutes for executives who mismanage other people’s money.

How quickly the “bailout” became a slightly more politically palatable “rescue.”

Note to Congress:

You’ve noticed that “trickle down” hasn’t worked very well lately, haven’t you?

Average CEO compensation last year was 275 times that of average U.S. worker pay, based on average hourly pay for about 80 percent of the U.S. workforce (the folks who actually produce the products and services that make companies work).

In a single work day last year, a typical big-company CEO earned as much as one of those workers did in their entire 260-day work year.

The well-paid corporate compensation consultants counterpunched, of course, telling Congress not to “handcuff” companies by putting limits on executive pay. They said pay ceilings will hurt companies’ ability to attract top talent.

Yeah. It’s been working so well.

It’s over-reaching the cure to demand a shareholder vote on top-exec compensation. But as the nation works through this financial crisis, the folks in the trenches must be heard.

Enough is enough.

Executives who earned more than they were worth to start with should not, by all that is right and just, be rewarded when they leave behind organizations littered with pink slips.

And have you looked at the value of your 401(k) this week?

Ouch. The only trickle-down there is the sound of assets swirling down the drain.

And where is the call for privatizing Social Security now?

Not exactly an election-time winner this go-around, huh?

Yes, the economy is cyclical. Has been. Will be. But the hurt on the downsides must be shared.

Unless legislators do what corporate compensation committees haven’t had the backbone to do, most of working America will continue to suffer from the greedy mistakes of a few.

Regulation? In this case, bring it on.

Unlimited executive greed has severed people from jobs and jobs from the economy. It’s gnawed away retirement security and college education funds in hard-working families.

And the architects of this economic collapse?

Greet them if you’re ever in Sun Valley…or Aspen…or Tuscany…or…

About the Author: Diane Stafford is the workplace and careers columnist at The Kansas City Star. A veteran journalist, she has held several reporting and editing positions at The Star on both the business and metropolitan desks. Currently, she writes columns that appear in The Star on Thursdays and Sundays as well as other business and economic news articles throughout the week, accessible at www.kansascity.com. Her daily “Workspace” blog also is available at www.workspacekc.typepad.com. She is the author of “Your Job: Getting It, Keeping It, Improving It, Changing It,” a career advice book. She holds bachelor’s and master’s degrees in communications from Stanford University.

Cross-posted at Workspace.

On August 14, 2008, the Consumer Product Safety Improvement Act became law. Of interest to employees and their advocates is a new whistleblower provision. The Act creates a legal protection for employees who raise concerns about the safety of consumer products.

About 20 million Americans work for employers involved in the manufacture, distribution, and sale of consumer goods. Now they are protected from retaliation when they provide information about a violation of the Consumer Product Safety Act to their employer, the federal government, or any state attorney general. Employees who believe they have suffered unlawful retaliation have 180 days (from their first notice of the retaliatory act) to file a written complaint with the Occupational Safety & Health Administration (OSHA). However, if the safety violation involves toxic chemicals, and if the written complaint is filed within 30 days, then the employee can also seek punitive damages under the Toxic Substances Control Act (TSCA).

This new CPS Act protections provides for jury trials, compensatory damages, temporary and final reinstatement, and attorney fees. Congress protects employees as long as they have a reasonable basis to believe there is a violation. If the company proves that there was no violation, they still cannot retaliate against employees who reasonably raised a concern. Also, complaining employees only have to show that the unlawful motive was a contributing factor in the retaliatory act. Then the employer will have to prove, by clear and convincing evidence, that it would have imposed the same adverse action even if the employee had engaged in no protected activity.

If the Department of Labor takes more than 210 days to issue a final order, then the complainant can file a new action in U.S. District Court to seek a jury trial.

The National Whistleblower Center (NWC) is sponsoring a training seminar about this new law on November 21, 2008, in Washington, DC. It will be an opportunity to attorneys and other advocates to learn about the provisions of the new law, the Department of Labor’s plans for investigation and adjudication, and NWC’s strategies for maximizing the opportunities to get good results in the first court decisions under this new law. For more information about this seminar, see NWC Seminar on CPSIA.

About this Author: Richard Renner is a leading advocate for whistleblowers, with a long record of service for labor organizers and civil rights. He is a member of the Executive Board of the National Employment Lawyers Association (NELA) and a former Co-Chair of NELA’s Whistleblower Committee. Prior to joining the National Whistleblowers Center in 2008, Mr. Renner worked for 27 years as a lawyer in Ohio where he was a founding partner in the firm of Tate and Renner. Mr. Renner is the author of several articles including: “Federal Environmental Whistleblower Complaints,” in, Employee Rights Quarterly, Vol. 3, No. 1 (Summer 2002), pp. 29-34; “Whistleblower Book Helps with All Retaliation Cases,” a review of Concepts and Procedures in Whistleblower Law, NELA Employee Advocate, Spring 2001, p. 24; “Federal Whistleblower Complaints,” feature article for Ohio Employment Lawyers Ass’n Newsletter, October, 1996.

When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

• When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
• There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
• Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

• explain why plaintiffs fare so much worse in front of federal district court judges than juries;
• explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

They’re not like taking up skydiving.

I was subscribing to a business magazine for women in 2001. I remember the year because I got laid off and had to cancel all my subscriptions, though the magazine’s name is lost in the mists. Anyway, that was the verdict of an article they published on combining children and work, that having children isn’t a hobby like skydiving.

The author wrote about endless frustration with having employers act as though children are an inconvenient hobby to indulge, and a really far out hobby at that, instead of the only way you insure the existence of a future workforce.

Parenting is normal, but the business world still treats it like a disorder.

I didn’t have any children when I read that article, and don’t yet, but the author’s metaphor has always struck me as a desperate plea for mercy for working parents. I was in my mid-20s, single, working 60-80 hours a week and spending most of my weekends catching up on sleep. It was hard enough taking care of myself, why wouldn’t an employer get that having other people to take care of wasn’t just some whimsical pastime?

Then I started to notice that the receptionist at work got talked about as being unreliable because she had occasional childcare emergencies that she had to take off for. I wasn’t thought of in the same way when I took a half day for personal reasons and shifted my hours around to make up for it.

In our office hierarchy, I was a trusted, salaried professional. She was treated like an answering machine. Machines only get attention when they break.

It’s hard for everyone.

I thought about that article sometimes after I got laid off a couple months later. It made me more grateful that even when times were tough, it was just me that had got stuck in a difficult situation.

While I didn’t have kids, I had been one. My sibling and I weren’t a hobby to my parents. They’d worried and sacrificed for us, we were their world.

It’s been harder as women integrated into the workforce to assure that parents could still be there for their children. The idealized, standard model of an employee is still tilted towards a single person or a married male partnered with a full-time parent and homemaker.

The first generation of women who came to the workforce as parents had to do two jobs, as many, many people before me have pointed out. Not only was childcare still seen as women’s natural job, but because of ingrained wage discrimination, it hurt families more in the pocketbook for men to cut back on their work obligations to handle childcare.

You’ve probably heard all the reasons why this was bad for women, and it was, and they realized it quite quickly. Too bad it took such a long time for men to realize that the situation was bad for them as well and always had been.

Attitude adjustments happen.

The necessary flipside of expanding women’s roles in family and the society is expanding men’s roles. Yes, there are women who’d rather work more when the children are young, like Republican vice presidential nominee, Gov. Sarah Palin. There are also men who’d rather spend more time with their families when the children are young, like Democratic vice presidential nominee, Sen. Joe Biden.

Even as late as 2006, a state like California, which has a fairly progressive family leave policy saw relatively few men take advantage of it. The financial responsibilities men continue to be saddled with by cookie cutter gender expectations and wage inequality still leave many men feeling torn between paying the bills and staying away from their partners and new infants during an important and emotionally intense time.

You know how the saying goes. Who wishes on their deathbed that they’d spent more time at the office?

Fortunately for them, and their families, nearly 70 percent of men would consider staying home to be a caregiver if money wasn’t an issue. Those numbers reflect a society where women’s advances give men a greater range of acceptable options, but even though the numbers have increased, only around 330,000 men in the U.S. are stay-at-home dads.

That’s not even one percent of adult American men. I count it as yet another market failure, for there to be such a significant gap between what today’s families want and what they feel they’re able to handle.

And we aren’t talking about wanting extravagant perks out of life, this isn’t a call for free skydiving lessons for everyone. We’re talking about the ability of parents, both birth and adoptive parents, to provide healthy, secure relationships with their children and keep the basic necessities covered at the same time.

This is something fundamental to being human and you don’t need to have kids to appreciate it.

Where are our leaders?

The United States continues to be the only Western nation without paid family leave, with 163 other nations offering paid maternal leave and 45 providing paid leave for fathers.

Current law only forbids employers from treating women worse than men, who are themselves severely penalized if they want to give their families more of their time. Current business culture often looks at leave suspiciously, as a threat, a frivolity and an opportunity for employee cheating.

Both government and business are behind the times. More than that, they’re adding to the strain on families in a hard economy. And if I’ve said it once, I’ll say it a hundred times, you can’t have a healthy economy when your workforce is stretched to the breaking point.

This is a nation that needs, almost all of us, to spend more time with our families.

Meanwhile, our institutions include a business community that prioritizes executive bonuses and congressional pay raises over boosting living wages for typical families. Working and middle class families get squeezed for both money and time, and their basic quality of life suffers.

Even before the current financial crisis, only a third of Americans believed that the future would be better for their children than it was for them. Something has to give. People need some assurance that their children’s lives can be better than their own again, and a good start would be making it easier for families to meet both their caregiving and financial responsibilities. A good start would be paid leave and gracious accomodation for one of the most important family decisions many of us will ever make.

America’s families are the real fundamentals of our economy. Our leaders need to act like it.

About the Author: Natasha Chart has been blogging about the environment, social justice and various other political topics since 2002. She currently writes at MyDD.com and works as an online marketing consultant in Philadelphia.