Workplace Discrimination Law Reinforces the Very Harms It Aims to Redress

Rights on Trial bookA major new book by three American Bar Foundation (ABF) scholars illustrates how employment civil rights litigation entrenches patterns of discrimination in and out of the workplace.

“Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality” offers a comprehensive analysis of employment civil rights litigation in the U.S. and gives voice to real plaintiffs in their pursuit of justice and defense of their fundamental civil rights.

Co-authors and sociologists Ellen BerreyRobert L. Nelson, and Laura Beth Nielsen examined 1,788 cases filed between 1988 and 2003 and conducted 100 interviews with plaintiffs, plaintiffs’ attorneys, employer defendants, and defense attorneys, to represent a holistic view of workplace discrimination law in action.

Though significant legislative and judicial progress in civil rights protections has been made over the past 50 years, “Rights on Trial” emphasizes how workplace discrimination based on race, gender, age, and disability persists. The authors find that the adversarial nature of litigation places plaintiffs at a disadvantage from the outset. Legal recourse is rare, but plaintiffs who do file legal charges often experience substantial challenges in navigating litigation, including:

  • mistreatment by their colleagues and management
  • difficulty securing legal representation
  • extensive personal and financial burdens – including job loss – as a result of the case.

Meanwhile, employers manage litigation in ways that minimize costs and insulate their workplaces from change, particularly through their reliance on small settlements.

Existing systems of privilege

The book exposes the ways that employment civil rights litigation can underscore existing systems of privilege. The research reveals that many plaintiffs struggle to obtain a lawyer as a result of structural inequalities and lawyer biases. It finds that 23% of workplace discrimination cases are filed without a lawyer or pro se. Cases filed pro se are dismissed at a rate of 40%, compared to 11% for cases with attorneys.

These disadvantages are exacerbated for people of color; African American plaintiffs are 2.5 times more likely to file claims without a lawyer and Asian American and Latino plaintiffs are 1.9 times more likely to file pro se compared to their white peers.

“Even though Americans revere rights, and employers say they strongly favor discrimination law, the litigation process demeans the people who make rights claims,” said the authors. “In fact, employment civil rights litigation tends to reinforce the very patterns of inequality that the law was intended to eliminate.”

“Rights on Trial” is the culmination of more than a decade of research examining the U.S. model of employment civil rights litigation. In February 2017, the EEOC cited the research contained in “Rights on Trial” as a basis for changes in its 2017-2021 Strategic Enforcement Plan. This research was supported by the American Bar Foundation, the National Science Foundation, the Searle Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation.

“This book reflects ABF research at its finest,” said ABF Director Ajay K. Mehrotra. “The authors have conducted a deeply rigorous empirical study of employment discrimination that tackles timely and important questions about the stubborn persistence of discrimination and its relationship to social inequality.”

For more information on “Rights on Trial” or on Berrey, Nelson, and Nielsen’s research, please visit rightsontrial.com.

About the authors

Ellen Berrey is an ABF-affiliated scholar, assistant professor of sociology at the University of Toronto, and a celebrated sociologist whose research investigates the culture and politics of inequality, race, and law.

Robert L. Nelson is the MacCrate Research Chair at the ABF and professor of sociology and law at Northwestern University. He is a leading scholar of the legal profession and discrimination law and an expert on the relationship between law and social inequality.

Laura Beth Nielsen is a research professor at the ABF and professor of sociology and law and the director of the Center for Legal Studies at Northwestern University. Nielsen’s award-winning research focuses on the sociology of law, civil and constitutional rights, and how ordinary people understand and relate to law. She has edited several books on employment civil rights including “Handbook of Employment Discrimination Research: Rights and Realities,” co-edited with Nelson in 2005.

The American Bar Foundation (ABF) is among the world’s leading research institutes for the empirical and interdisciplinary study of law. An independent, nonprofit organization for more than 60 years, The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions.  To further this mission the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally. The ABF’s primary funding is provided by the American Bar Endowment and The Fellows of The American Bar Foundation.

Man Recovers $16.6 Million in Racial Discrimination and Wrongful Termination Verdict

A Los Angeles jury has returned a $16.6 million verdict in favor of a company manager who was wrongfully terminated and discriminated against because of his race.

Carney Shegerian of Shegerian & Associates, Inc., a Santa Monica-based litigation law firm specializing in employee rights, represented the victim and obtained the jury verdict against defendant McWane, Inc.

The court announced that the award of $16.6 million is composed up of $373,514 in economic damages, $2.5 million in non-economic damages, and $13.8 million in punitive damages.

Plaintiff Rickey Moland, a 53-year-old African-American man, began working as a Production Supervisor in June 2010 at McWane, Inc., a manufacturer of water valves and hydrants. According to Moland’s complaint, he struggled to be treated with respect by his subordinates and superiors at the company, despite consistently excellent work performance. Despite this, he chose to continue to work hard, hoping that he would earn his colleagues’ respect.

Throughout his tenure as the first and only African-American manager in the McWane, Inc.’s facility in Corona, CA, Moland was repeatedly referred to by other employees in racially derogatory terms. Managers and Human Resources became aware of this conduct, yet did nothing to stop it.

Called the N-word

Moland later learned from multiple sources that he was regularly referred to by “the N-word” behind his back by several employees, including supervisors and high-ranking management.

Two other employees filed complaints of racism, which sparked an internal investigation. At the conclusion of the investigation, the company chose to fire Moland in April 2012 on the grounds that he was not “getting along” with fellow employees.

In court, attorney Shegerian proved to the jury that such behavior had taken place and that McWane, Inc. had clearly violated discrimination and wrongful termination laws, resulting in a favorable verdict for Moland.

“Rickey Moland is a hard-working, ethical professional who was victimized by egregious, repeated racial discrimination and an employer that chose to look the other way, and wrongfully terminate our client,” said Shegerian. “He performed his position at an exemplary level prior to his termination. We hope that McWane and other employers have learned from this experience that it is against the law to discriminate against and harass employees due to the color of their skin.”

73% of 2016 Law Graduates Found Full-Time Employment – Up from Previous Year

Young male attorney bookshelf

The higher percentage of employed students, however, results from an approximately 7 percent decrease in the size of the graduating class.

73 percent of the 2016 graduates of the 204 law schools approved by the ABA to offer the J.D. degree were employed in full-time long-term bar-passage-required or J.D. positions, according to the American Bar Association.

Click below to see the chart.

That compares to the approximately 70 percent of the graduates reporting similar full-time long-term jobs last year.

The higher percentage of students so employed, however, results from an approximately 7 percent decrease in the size of the graduating class. The actual number of full-time long-term Bar-Passage-Required or J.D. “Advantage” jobs declined by 4 percent from 28,029 for 2015 to 26,923 in 2016. “Advantage” jobs do no require bar passage or an active law license or involve practicing law, but they are positions for which the employer sought an individual with a J.D., and perhaps even required a J.D., or for which the J.D. provided a demonstrable advantage in obtaining or performing the job.

  • An online table provides select national outcomes and side-by-side comparisons between the classes of 2016 and 2015. Individual law school outcomes are available online.
  • Further reports on employment outcomes, including spreadsheets aggregating the individual school reports and comparing outcomes for the past three years, are available on the Legal Education Statistics page of the ABA’s website.

The Council of the ABA Section of Legal Education and Admissions to the Bar and its accreditation committee are recognized by the U.S. Department of Education as the national accrediting agency for programs leading to the J.D. The section’s 14,000 members studies and makes recommendations for the improvement of the bar admission process, and the section and its governing council operate for accreditation purposes as independent arms of the ABA.

With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world.

2016 Law Graduate Employment

Whistleblower Recovers $22.4 Million in Wrongful Termination Lawsuit

Tamara S. Freeze

Attorney Tamara S. Freeze of Workplace Justice Advocates, PLC, in Irvine, CA.

A Los Angeles Superior Court Jury awarded $22.4 million in punitive damages to Steven Babyak in his lawsuit against former employer, Cardiovascular Systems, Inc., for Whistleblower Retaliation and Wrongful Termination in Violation of Public Policy.

The award follows the jury’s unanimous verdict yesterday in which it awarded $2.7 million in general damages to Babyak in his lawsuit against the St. Paul,

The award follows the jury’s unanimous verdict yesterday in which it awarded $2.7 million in general damages to Babyak in his lawsuit against the St. Paul, MN-based manufacturer of products to treat peripheral and coronary vascular disease.

Commenting on the verdict, Babyak’s attorneys Tamara Freeze and Robert Odell of the Irvine, CA-based law firm, Workplace Justice Advocates, PLC, remarked: “The large verdict by the jury is complete vindication for our client, Steven BayBank. CSI fired our client after he alerted upper management of an illegal scheme of kickbacks to doctors as well as violations of the Sarbanes Oxley Act.”

“We hope that CSI’s Board of Directors will take decisive action against the executives who terminated Mr. Babyak and then tried to cover it up. What they did was outrageous and the jury unanimously agreed.”

Safety violations ignored

In his lawsuit, which was filed on November 16, 2015, Babyak claimed that during the nearly three-year period he worked for Cardiovascular Systems, he repeatedly expressed concerns to its upper management, human resources and corporate legal counsel about a variety of issues including patient safety and violations of numerous state and federal laws, such as Anti-Kickback Act, Sunshine Act and Sarbanes-Oxley Act.

Babyak, who resides in Irvine, CA and worked in Southern California, served Cardiovascular Systems as a Regional Sales Manager with responsibilities for hiring, training and developing sales representatives. He reported that his ongoing complaints resulted in continual retaliation and harassment from the company and ultimately resulted in disciplinary actions against him, including the reduction of the territory he was responsible for which severely impacted his compensation and bonuses, quota increase and, ultimately, his discharge. On June 1, 2015, his employment was terminated by the company.

California Law Firm Subpoenas for Identity of Negative Reviewers

Glassdoor Logo

A California lawyer is determined to find out the identity of those leaving anonymous negative reviews about his law firm on the job listing website Glassdoor.com. Alleging the reviews are defamatory, the name partner of California law firm Layfield & Barrett is fed up with authors claiming to be current and former employees of the firm.

Spitting Venom Anonymously

Attorney Philip Layfield filed a defamation case last month in Los Angeles County Superior Court against 25 “John Does” over anonymous Glassdoor reviews. Layfield believes former employees who “spew false information” and “spit their venom” on websites such as Glassdoor.com should have to answer for their conduct. Layfield and the firm also subpoenaed the website for identifying information about the authors of 12 different posts.

One reviewer wrote, “For the love of God, do NOT work here.” Another reviewer said working at the firm was “psychological torture.”

Layfield filed the subpoena because, in order to move forward with his defamation claims, he must know the identity of the reviewers. Layfield’s subpoena requested all documents that “state, list, describe, or refer to identifying information” related to the people who authored the posts. Glassdoor is not a defendant to the defamation claims, likely attributable to Section 230 of the Communications Decency Act. Under the Act, interactive online services are immunized from liability stemming from content uploaded by site users.

“People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law,” Layfield said. “We are going to obtain the identities of these cowards and bring them to justice.” Glassdoor disagrees, however due to its standard practice “to fight on our users’ behalf to protect their anonymity and rights to free speech.”

First Amendment Protection

Generally, people have a First Amendment right to speak anonymously. People can count on anonymity as long as they don’t do things to lose First Amendment protection. The First Amendment doesn’t shelter people who engage in cyberbullying, reveal trade secrets, or make threats.

Layfield said in a statement,

“With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when they interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.”

 

Unfortunately for Layfield, a majority of the reviews on Glassdoor are just opinions, which are not enough to support a defamation claim. One review, which comes close to defamation, alleges that Layfield is unethical. Without more, however – such as citing a specific provision of the ethics code – even this comment will likely be construed as an opinion.

Layfield’s suit will thus likely be riddled with obstacles.

Speedo “Suit” Proceeds to Trial for 66-Year-Old Attorney Plaintiff

roy-lester

A 66-year-old attorney’s Speedo-style swimwear lawsuit was revived by a New York appellate court and the attorney’s case will now proceed to a trial.

The New York Supreme Court Appellate Division, Second Department, determined the defendant – and former seasonal employer – parks and recreation department failed to provide a legitimate reason as to why Roy J. Lester of Lester & Associates PC was required to wear a Speedo-style swim brief for a lifeguard certification test.

Boxers or Briefs

Plaintiff Roy Lester held a seasonal job at the Jones Beach State Park when he lost his job at age 57 in 2007. Lester asked to take his lifeguard recertification while wearing a bicycle-short style swimsuit rather than a state-issued lifeguard racing brief. Lester again attempted to take a new hire lifeguard certification test in 2008, but his request to take the exam in the more modest suit was again refused by the parks department.

Lester worked for many years as a seasonal lifeguard at Jones Beach. Prior to 2007, Jones Beach did not place any restrictions on the type of swimsuit a candidate could wear while taking either the new hire or rehire lifeguard test.

After being denied rehire based on his swimsuit style twice, Lester filed an employment discrimination suit alleging he was discriminated by Jones Beach based on his age. Lester alleged he was the oldest applicant to show up to take the lifeguard test and that he was discriminated against for wearing a swimsuit commonly worn by older individuals.

Lester also alleged, and the appellate court agreed, that younger applicants were wearing various different types of swimsuits and – unlike him – were not prohibited from taking the test. The New York appellate court determined the parks department failed to demonstrate a legitimate reason why Lester could not wear a more modest swimsuit of his choice.

Proceeding to Trial

“The defendant failed to eliminate all triable issues of fact as to whether it had legitimate, nondiscriminatory reasons for refusing to allow the plaintiff to take the test for new hires in a ‘jammer’ [boxer-style] swimsuit.” The appellate panel’s decision reversed that of Justice Michele Woodard of the Nassau County Supreme Court. Justice Woodard granted a motion for summary judgment in favor of the state in 2014.

The appellate division additionally felt trial was necessary on the plaintiff’s part. “The plaintiff also failed to demonstrate his entitlement to judgment as a matter of law since he did not eliminate all triable issues of fact as to whether the defendant’s reason for not allowing him to wear a “jammer” during his new hire test was legitimate and nondiscriminatory or pretextual.”

Since neither party was entitled to summary judgment, Lester’s case will now proceed to trial.

The New York State Office of Parks, Recreation, and Historic Preservation is represented by Valerie Figueredo and Andrew Ryhs Davies of counsel for the New York State Office of the Attorney General.

Lester is represented by Roy J. Lester pro se of counsel and Gabriel R. Korinman of counsel of Lester & Associates PC.

The case is Roy J. Lester v. New York State Office of Parks, Recreation and Historic Preservation, case number 2014-03835 (index number 10863/09), in the New York Supreme Court Appellate Division, Second Department.

Florida Court Levels Playing Field in Workers’ Compensation Suit

Fraternal Order of Police

The First District Court of Appeals of Florida ruled that a section of the state workers’ compensation law is unconstitutional. The appeals court held the law violates workers’ guarantees of freedom of speech and association, and additionally blocks workers from obtaining legal counsel.

Inability to Find Counsel

The provision of the workers’ comp law requiring that an attorney can receive a fee based only on a percentage of the award secured for the client violated the constitutional rights of City of Edgewater Police Officer Martha Miles, who was injured on the job by inhaling methamphetamine fumes.

Plaintiff Martha Miles filed a workers’ compensation claim alleging that in 2011 she was twice exposed to toxic chemicals used to make crystal methamphetamine. Miles said the exposure aggravated her asthma to the point that it affected her work.

Turning to the Fraternal Order of Police Lodge 40 for help in paying for an attorney, Miles managed to work out a deal with Michael J. Winer of Michael J. Winer PA and Geoffrey Bichler of Bichler & Kelley PA. However, Judge of Compensation Claims Mark Massey found that the statute prohibited the union from paying a retainer to the firm.

Miles could not find any counsel to agree to sign on for the fees allowed under the workers’ compensation statute and, according to her attorney Michael Winer, Miles was also unable to prove her claims before the Court of Compensation Claims on her own.

The potential sum for Miles’ counsel was so small several attorneys turned down representation because they could not afford to take her workers’ compensation case. The First District said the affidavits filed by six attorneys supporting Miles’ argument demonstrated that it is not economically feasible for an attorney to take on a case as complex as workers’ comp exposure claim when the likelihood of getting paid is so uncertain.

Infringement of Constitutional Rights

The First District agreed that Miles’ constitutional rights had been infringed upon with little public benefit to justify such a restriction on the free speech rights of workers. The appeals court said:

“To the extent these statutes prohibit a workers’ compensation claimant (or a claimant’s union) from paying attorneys’ fees out of their own funds for purposes of litigating a workers’ compensation claim, these statutes are unconstitutional, because they impermissibly infringe on a claimant’s rights to free speech and to seek redress of grievances.”

 

“The statutes’ restrictions on a claimant’s ability to contract for legal representation to obtain benefits no longer promote the health, safety, welfare or morals of the public when, as demonstrated here, an injured worker is unable to secure benefits to which she could potentially otherwise be entitled under law, because of the statutory restrictions on attorney compensation,” determined Judges L. Clayton Roberts, James R. Wolf, and Bradford L. Thomas, who sat for the First District.

Miles’ counsel believes this monumental worker-friendly decision will act as a huge “leveling of the playing field” for workers injured on the job across the state.

The case is Miles v. City of Edgewater Police Department et al., case number 1D15-165, in the First District Court of Appeal of Florida.

Uber Sued by Sexual Assault Victims

Uber assaultA California Court has allowed two women sexually assaulted by Uber drivers to proceed in a lawsuit against Uber, despite the company’s motion to dismiss arguing it could not be held liable for crimes committed by the drivers who they consider independent contractors.

Driver raped passenger

Jane Doe 1 of Connecticut and Jane Doe 2 of Florida brought a single lawsuit against Uber.  Boston Uber driver Abderrahim Dakiri assaulted Doe 1 during a ride home on in February 2015.  Police later arrested and charged Dakiri with assaulting Doe 1 on February 7, 2015.

The driver was a recent immigrant who had been in the country for three years, and a background check would not have turned up other relevant information.  While driving Jane Doe 1, Dakiri drove “more than 15 minutes off route” and parked in a remote area “in order to increase his opportunity to sexually assault her,” according to the opinion.

Jane Doe 2 asserts that driver Patrick Aiello, also a middle school teacher, in Charleston, S.C., raped her.  Aiello was arrested on August 9, 2015 on charges of kidnapping and first-degree criminal sexual conduct.

Uber’s seven-year background check did not pick up Aiello’s 12-year-old assault conviction stemming from a domestic violence arrest in 2003.

While driving Jane Doe 2 home, Aiello locked the car doors and drove the car to a remote parking lot near a highway where he “proceeded to viciously rape her and threaten her with harm multiple times.”

Afterwards Doe 2 was able to run to the highway where she was hit by a car while waiving it down for help.  Police took her to a hospital where she became suicidal and remained in a psychiatric unit for three days.

Uber liable as employer

Doe 1 and Doe 2 asserted claims for negligent hiring, supervision, and retention, fraud, battery, assault, false imprisonment, and intentional infliction of emotional distress under a theory of respondeat superior.

Uber requested the court dismiss the lawsuit, claiming no employment relationship exists between Uber and drivers because they are independent contractors.  Uber recently settled two class action lawsuits for $100 million brought by drivers who sought to be classified as employees.

The settlement allowed Uber to continue classifying drivers as independent contractors, although various concessions were given to drivers.

The court agreed with Doe 1 and Doe 2’s argument that Uber is an employer, who retains control over customer contact and fair price, uses a pool of non-professional drivers with no specialized skills, and may terminate drives at will.

In determining that an employment relationship existed, the court wrote, “it matters not whether Uber’s licensing agreements label drivers as independent contractors, if their conduct suggests otherwise.”

Concerns about safety of female passengers

In the alternative, Uber argued the sexual assaults that occurred were outside the scope of the driver’s employment, rendering Uber not liable for their crimes.  The court wrote that a “sexual assault by a…taxi-like driver…is not so unusual or startling” and assaults such as these are “exactly why customers would expect” background checks of Uber drivers.

Amidst concerns about the safety of female passengers and a Buzzfeed article publishing screen shots of Uber’s customer support system showing thousands of entries containing the words “rape” and “sexual assault,” Uber revealed that it received only five claims of rape and 170 claims of sexual assault between December 2012 and August 2015.

Assaults occurred within scope of employment

The court ruled that despite Uber’s effective argument, the court could not determine as a matter of law that sexual assault by an Uber driver is always outside the scope of employment.  For the purpose of Uber’s motion to dismiss, the court found that the drivers were acting in the scope of employment as drivers.

“Holding Uber liable could also forward the underlying policy goals of respondeat superior, including prevention of future injuries and assurance of compensation to victims,” wrote the court.

The court, in its ruling, dismissed the claims against Uber for the negligent hiring, supervision, and retention of Dakiri, the driver who assaulted Doe 1, because nothing was claimed to have existed in his background that Uber knew or should have known that should have prevented his approval as a driver.

The same claims against Uber for driver Aiello remain however, because Uber should have known about his criminal history.

The court denied all other of Uber’s motions to dismiss, allowing Doe 1 and Doe 2 to proceed on its claims against Uber as the employer of the drivers.

 

The case is Jane Doe 1, et al., v. Uber Technologies, INC., Case No. 15-cv-04670-SI, in the United States District Court Northern District of California.

On-the-Job Death Toll Compells More Safety Regulations for Workers

AFL-CIO

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) reported 63 deaths on the job last year in Massachusetts in its annual report on deaths in the workplace. The annual report, “Dying for Work in Massachusetts,” was released in conjunction with a ceremony at noon outside the State House.

The State House held the ceremony “to remember those who died or were injured while working in 2015, and to call for changes aimed at creating safer conditions on job sites.”

The American Federation of Labor and Congress of Industrial Organizations is a national trade union center and the largest federation of unions in the United States. This year marks the 25th anniversary the AFL-CIO has produced a report on the state of safety and health protections for America’s workers.

The High Toll of Death on the Job

Last year, 63 workers died on the job in Massachusetts alone. Fifty-five of the workers classified as on-the-job fatalities either died or were killed while working. The remaining eight workers were firefighters who died from work-related diseases.

The average age of workers killed by injuries in 2015 was 47. Workers in their twenties accounted for 16% of all fatal injuries, the AFL-CIO reports, while workers 60 and older accounted for 27% of all fatal injuries.  The report described the construction sector as “one of the most dangerous for workers,” with 18 on-the-job fatalities in Massachusetts last year.

While the report provides 226 pages packed with numbers and statistics, JDSupra points out that “Anytime we talk about death in terms of numbers and statistics, the individuals who form the data are unavoidably obscured, their deaths become abstractions, and we have difficulty seeing the deceased as the daughters and sons, the brothers and sisters, the mothers and the fathers, the neighbors and friends they were.”

  • Dr. Michael Davidson was seeing patients at Brigham and Women’s Hospital when he stepped away to talk with the son of a deceased woman he had treated and the son shot him.
  • Lawrence O’Leary was on a parking garage under construction at Logan Airport when he fell off the building.
  • David Sutherland was trying to get from his sinking fishing boat to a rescue boat in the ocean off Gloucester.
  • Joseph Brady was crossing a road to a lot in Stoughton where he was selling Christmas trees when he was run over.
  • Lenore Travis was operating a tractor on her small family farm in Lincoln when the vehicle flipped over.

In addition to Dr. Davidson, a revered cardiac surgeon, the report notes that five persons lost their lives through violence in the workplace.

  • A delivery man and a taxi driver were both robbed, shot, and killed.
  • A sous chef was stabbed with a 12-inch sushi knife by a co-worker.
  • A clerk was found shot in the parking lot of a cell phone store.
  • A young man participating in a job-ready program was shot and killed by a rival while shoveling snow.

Safety on the Job: Oversight and Enforcement

More than 532,000 workers now can say their lives have been saved since the passage of the Occupational Safety and Health Act of 1970, which promised workers in this country the right to a safe job. Since that time, workplace safety and health conditions have improved but at the same time some conditions have gotten worse and too many workers remain at serious risk of injury, illness or death.

Occupational Safety and Health Administration (OSHA) resources are still too few and declining with only 1,840 federal and state inspectors to inspect 8 million workplaces. This means there are enough inspectors for federal OSHA to inspect workplaces once every 145 years, on average, and state OSHA plans have enough to inspect workplaces once every 97 years.

The current level of federal and state OSHA inspectors provides one inspector for every 74,760 workers.

Despite a new law that will allow OSHA to increase its penalties for workplace safety and health violations, penalties are still too weak to be an effective deterrent for some employers and large corporations.

AFL-CIO contends the solution is obvious: “Very simply, workers need more job safety and health protection. The nation must renew the commitment to protect workers from injury, disease and death and make this a high priority. We must demand that employers meet their responsibilities to protect workers and hold them accountable if they put workers in danger. Only then can the promise of safe jobs for all of America’s workers be fulfilled.”

View the 2016 edition of “Death on the Job: The Toll of Neglect” here.

Wisconsin Court Strikes Down Right-to-Work Law in Favor of Unions

Unions

Labor unions and their supporters rallied in the rotunda of the Wisconsin State Capitol in opposition to the right-to-work law.

Wisconsin’s right-to-work law, heralded by Republican Gov. Scott Walker as he was mounting his run for president, was struck down as violating the state constitution. The Wisconsin law, which barred unions from requiring workers in the private sector to pay the equivalent of union dues, was deemed a violation of the state’s Constitution by Judge C. William Foust of Dane County Circuit Court.

An Unconstitutional Taking

Three unions – Machinists Local Lodge 1061 in Milwaukee, the Wisconsin AFL-CIO chapter, and United Steelworkers District 2 in Menasha – filed the lawsuit last year shortly after Gov. Walker signed the right-to-work bill into law. Right-to-work laws prohibit businesses and unions from reaching agreements that require all workers, not just union members, to pay union dues. Twenty-five other states currently have such laws. Attorney Erin Mediros represents all three unions.

The unions argued that Wisconsin’s law was an unconstitutional seizure of union property since unions now must extend benefits to workers who don’t pay dues. Dane County Circuit Judge William Foust agreed that the right-to-work law amounts to the government taking union funds without compensation since under the law unions must represent people who don’t pay dues.

“While (union) losses today could be characterized by some as minor, they are not isolated and the impact of (the law) over time is threatening to the unions’ very economic viability,” he wrote. Judge Foust wrote that the right-to-work law presents an existential threat to unions. Noting that no other state court had struck down a right-to-work law on the same grounds, Foust made it clear he was not obligated to follow the decisions of other states.

Plans to Appeal

Republicans who backed the law dismissed the ruling, saying it will be reversed.

“Once again, a liberal Dane County judge is trying to legislate from the bench,” Assembly Speaker Robin Vos (R-Rochester) said in a statement. “No one should be forced to join a union or pay union dues as a condition of employment.”

Wisconsin Attorney General Brad Schimel promised to appeal the decision. Also Republican, Schimel said he was confident it would not stand. Schimel has not made a decision on whether to seek an immediate suspension of the ruling while the appeal is pending.

Gov. Walker took to Twitter upon hearing the court’s decision to write, “We are confident Wisconsin’s freedom-to-work law is constitutional and will ultimately be upheld.”

Unjust and Unconstitutional

The industrial Midwest – a region where organized labor has been weakened by a series of new laws in recent years – hailed the decision as a victory for the middle class and working families. Democratic and union leaders cheered the ruling, but its fate may be uncertain due to the widespread Republican discussion of appeal.

“The extreme right-wing Republican agenda has been incredibly harmful to working people and businesses in Wisconsin,” said Democratic Assembly Minority Leader Peter Barca.

Phil Neuenfeldt, president of the Wisconsin AFL-CIO, said the ruling was a “needed check on Scott Walker’s attacks on working families.” “Right to work has always been unjust, now it’s proven unconstitutional,” he said.

Supporters of right-to-work laws view them as giving workers the freedom to choose whether to join a union. Opponents believe the laws weaken unions by depriving them of the dues from workers who choose not to pay them, resulting in lower wages and fewer employee rights. Opponents also believe the Republican-backed law is intended to undermine unions’ political power because unions tend to vote Democrat.

“Labor is a commodity that can be bought and sold,” Judge Foust wrote in his ruling. “A doctor, a telephone company, a mechanic — all would be shocked to find they do not own the services they perform,” he said, adding later: “Unions are no different; they have legally protectable property interest in the services they perform for their members and nonmembers.”