CELA VOICE ← PROMOTING FAIRNESS AND EQUALITY IN THE WORKPLACE ← Page 10

Let’s drink to the hard working people 3

Feb

21

2014

I fell under the influence of the Rolling Stones as an early teenager and never left. The other day I was listening to Keith Richards grinding out his raspy lyrics to the song “Salt of the Earth,” which begins with the guiding line, “Let’s drink to the hard working people.” The Stones understood back in 1968 (and probably earlier) that workers should be appreciated and recognized, and it’s time the rest of us follow suit.

Workers, especially low wage workers, are much worse off today than they were 46 years ago when “Salt of the Earth” was released. According to a recent study from the Center for Economic and Policy Research, 40% of Americans now make less than the 1968 minimum wage. Had the federal minimum wage kept pace with gains in the country’s productivity since 1968, it would be $16.54 per hour as opposed to its current abysmal rate of $7.25 per hour. Put another way, the current federal minimum wage is 32% less in 2013 dollars than it was in 1968.

Corporate America’s concerted attack on unions coupled with anti-union legislation has also hurt workers. On average, unionized employees earn roughly $200 more per week than non-union employees. Today, unions represent a meager 7% of employees in corporate America, which is one-quarter the level in the 1960s. In 2013, the union membership rate was 11.3% compared to 20.1% in 1983. A 2011 study argues that the decline of organized labor accounts for about one-third of the rise in income inequality for men and one-fifth for women — even for people who never belonged to unions.

Our country’s historically high poverty rate, which currently exceeds 15% of the U.S. population, is due at least in part to the failure to recognize and support labor. Four out of every five Americans will experience near-poverty, unemployment or reliance on welfare programs at some point in their lives. In 2013, the poverty wage level for a single full-time worker with one child was $8.11, which is almost a dollar more than the current federal minimum wage.

I call on all of us to raise our glass to hard working people and take action to reverse these devastating trends. An increase of the federal minimum wage to $10.10 per hour would raise the incomes for 17 million Americans. Federal law should follow California’s lead by imposing significant penalties against employers who fail to pay the requisite minimum wage or who fail to pay wages at all. Finally, unions should be lauded instead of vilified, especially in the burgeoning high tech industry which has always been hostile to unions.

Workers ARE the salt of the earth, and it’s time for the country to show them the respect and appreciation they deserve.

About Scott Ames

Scott Ames has been litigating wrongful termination, discrimination, harassment, family and medical leave, breach of contract, wage and hour violations, unfair competition and trade secret matters, and other employee rights cases for over two decades. Mr. Ames’ demonstrated record of success has resulted in him being named among the Top 100 Attorneys in Southern California in 2012 and 2013, a “Southern California Super Lawyer” by Los Angeles Magazine from 2007 through 2014, and a “Best Lawyer in America” from 2006 through 2014. Mr. Ames is also active in his community, and has served on a number of committees and boards of non-profit organizations which seek to improve the lives of the disenfranchised or working poor.

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Tackling political speech in the workplace: What we can learn from Chris Kluwe 1

Feb

13

2014

By Nicolas Orihuela

Chris Kluwe was back in the headlines this week for his public support of Michael Sam, a top NFL draft prospect, who announced on Sunday that he is gay. Chris Kluwe, a former punter with the Minnesota Vikings, claimed earlier this year that he was released from the team for his public support of gay marriage.

As high profile athletes, Kluwe and Sam command the attention of the media and the electorate when they speak up on important societal issues. Michael Sam has indicated that he will not engage in activism in support of gay rights and will choose instead to focus on his fledgling NFL career.

While I do not know him nor pretend to know his motives, I can’t help but think: is the fear of losing out on a high draft pick or not being signed by an NFL team driving his decision not to engage in political activity outside the locker room? Losing a job should not be a concern that employees have when considering whether to engage in political activities outside the workplace. Which brings us back to Kluwe’s situation and the question of whether the Vikings had the right to terminate him, assuming his allegations are true, for voicing his political views on gay rights?

With politics a part of daily life, it is only natural that the world of work and politics will collide. Unfortunately, it is not uncommon for employees to be terminated when the political opinions within these worlds also collide. Recently, Dick Metcalf, a well known gun journalist, was fired from his job writing for Guns & Ammo magazine after he wrote a column calling into question the absolute right to bear arms.

And take the recent case of Maria Conchita Alonso, a Latin-American actress, who was to participate in a Spanish language version production of “The Vagina Monologues.” After voicing her support for a Republican California gubernatorial candidate, Tim Donnelly, she was met with fierce protest and basically forced to resign from the production.

The difficulty lies in how to draw the boundaries around protected speech so that the political beliefs and activities of both the employee and the employer are respected. Employers will argue their own right to political expression and that they should be able to regulate disruptive political activity in the workplace. However, employers should not have the power to make employment decisions solely based on the political activities outside the workplace. An employee should simply be able to take a personal stand on political issues (rightly or wrongly) without fear of retribution.

Like Chris Kluwe, most workers who engage in political activity do so on their own time and outside of the workplace. But without any statutory protection, employers are able to misuse their economic power to influence the political activities of their employees no matter where those activities take place.

Now, if Chris Kluwe played for the Raiders, 49ers or Chargers — all based in California — his right to political speech would be protected. Two statutes (sections 1101 and 1102 of the California Labor Code) make it unlawful for private employers to retaliate against employees because of their political affiliations or political activities. California seems to be one of the very few states that protects employees from retaliation for engaging in political discourse outside of work or while at work.

So where does our punter, Mr. Kluwe, stand? As a result of his allegations, the Vikings are now investigating his claims and have interviewed Mr. Kluwe about his allegations. However, there is no guarantee that the team will corroborate what he alleges. And because he does not live in California, there is also no guarantee that the Vikings will remedy any wrongdoing. While I hope that the Vikings will do the right thing, the natural tendency is for large employers and institutions to close ranks and do nothing to change. We’ll see soon enough whether the Vikings decide to punt the issue or tackle the issue head on.

About Nicolas Orihuela

Nicolas Orihuela is a founding partner of the employment law firm of Hurwitz, Orihuela & Hayes, LLP and has been practicing since 2002. He represents employees in race discrimination, sex harassment, wrongful termination and disability discrimination related cases. He also handles wage and hour cases.

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A Nation at Waste: The long-term unemployed and job discrimination

Feb

7

2014

By Hina Shah

President Obama in his State of the Union speech was upbeat as he pronounced that we had the lowest unemployment rate in over five years. But this optimistic forecast glosses over the epidemic of the long-term unemployed. There are 3.9 million Americans who have been unemployed 27 weeks or longer and 2.6 million who have been unemployed for 52 weeks or longer, according to the National Employment Law Project’s report.

Stigmatization and discrimination against the long-term unemployed creates a major barrier to ending this epidemic. Rand Ghayad, a doctoral student of economics, conducted an experiment where 4800 computer-generated resumes of fictitious workers were sent out with identical credentials with varying unemployment lengths and industry experience. Workers who reported being unemployed for six months or more were almost never contacted. “It isn’t that firms aren’t finding the right workers,” Ghayad said, “but that employers are screening out the long-term unemployed.” This discrimination disproportionately impacts workers who are non-white, unmarried, disabled, impoverished and less educated – the groups who are over-represented among the long-term unemployed.

The President is on the right track when he asked business CEOs to take the pledge to not discriminate against the long-term unemployed and issued a directive to federal agencies not to screen out long-term unemployed workers from consideration for openings. But even with these measures, we face a real crisis of creating a permanent class of jobless Americans, as Congress gridlocks over extending benefits to the long-term unemployed. In a recent survey, 25 percent of the long-term unemployed reported that they did not have money for food and 10 percent have lost their home or apartment because they could not pay their rent or mortgage. Economists all agree that long-term unemployment slows overall economic growth and hurts the nation as a whole. Harder to quantify, but still real, is the toll that chronic unemployment takes on a person’s confidence and sense of dignity as well as their skill level.

We must do more to insure that the long-term unemployed are not abandoned on the road to economic recovery. The National Employment Law Project recently issued nine recommendations to address long-term unemployment. These are bold recommendations that call on the President, Congress and the business community to act to create new jobs and end the practice of discriminating against long-term unemployed individuals.

It is time to look again at the Roosevelt New Deal programs, like the Works Progress Administration that put 8.5 million Americans back to work building bridges, roads, public parks and strengthening America’s infrastructure. If we want to avoid a permanent subclass of citizens living in the shadow of our economy, the President must embrace a bolder path.

About Hina Shah

Hina B. Shah is an Associate Professor of Law and Co-Director at the Women’s Employment Rights Clinic (WERC) of Golden Gate University School of Law, addressing employment and labor issues faced by low wage and immigrant workers.

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Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

Jan

31

2014

By Sharon Vinick

Unlike other industrialized nations, the United States does not have a national paid sick leave policy. According to a 2011 study by the Economic Policy Institute, 40% million Americans working in the private sector are employed in jobs that do not provide paid sick time. And, the real cost of having employees go to work when they are sick is enormous. The Centers for Disease Prevention and Control estimates that the annual flu season, alone, costs companies $10.5 billion in lost productivity and direct medical costs. But, momentum seems to be building in favor of passing legislation that will provide paid sick leave to all employees.

In 2007, San Francisco became the first city in the country to require that all private companies – big and small – offer paid sick days to their employees. At the time, business groups warned that providing paid sick leave would negatively impact local business. As it turns out, these dire predictions were entirely wrong. According to a 2011 study by the Institute for Women’s Policy Research, paid sick leave has benefitted employees without reducing employer profitability.

While it took a few years for other municipalities to follow San Francisco’s leave, by November 2013, six cities and one state had paid sick leave laws: Connecticut, San Francisco, Washington, D.C., New York City, Jersey City (New Jersey) and Portland (Oregon). Then, last summer, Senator Tom Harkin and Representation Rosa DeLauro introduced the “Healthy Families Act,” which would allow workers to accrue up to seven days of paid sick leave over the course of the year. While the Act has not yet passed, each month, more states and municipalities seem to be jumping on the band wagon. Earlier this month, the Newark City Council passed a paid sick leave ordinance, and similar legislation is under consideration in California and Washington.

The national discussion regarding paid sick leave is not limited to legislative bodies. Earlier this month, Michael Miller of the Atlantic City Press, published an article regarding the move within New Jersey to provide paid sick leave. And, on Monday, the New York Times published a story by Rachel Swarns which explained that cities that have adopted paid sick leave ordinances have not experienced an exodus of businesses.

But the biggest push towards providing paid sick leave to all Americans came just this week. On Monday, during his State of the Union Address, President Obama said that “[a] mother deserves a day off to care for a sick child or sick parent without running into hardship – and you know what, a father does, too.” This remark was widely considered to be support for national legislation requiring that private employers provide paid sick leave. Then, two days later, actress Cynthia Nixon joined House minority leader Nancy Pelosi and a coalition of progressive groups in a “telephone town hall” in which they pushed for the passage of new legislation of paid sick leave.

Given that 74% of Americans believe that employers should be required to offer paid sick leave, it is high time that we pass legislation that guarantees all Americans access to paid sick leave.

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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U.S. Supreme Court defines the meaning of the phrase “changing clothes”

Jan

30

2014

By Sharon Vinick

Earlier this week, U.S. Steel and employers across the nation rejoiced as the United States Supreme Court issued a decision regarding the meaning of the phrase “changing clothes” within the context of the Fair Labor Standards Act. To understand why this ordinary phrase received such extraordinary attention requires some understanding of the Act itself, and the right of labor unions to negotiate over what type of work is compensable.

In 1938, when Congress enacted the Fair Labor Standards Act, which governs the minimum wages and maximum hours for individuals working in non-exempt positions, it failed to include definitions of key terms, such as “work” and “workweek.” The Supreme Court addressed the meaning of these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Co., concluding that the term “workweek” includes all time during which an employee is required to be on the employer’s premises and includes time spent engaged in “preliminary activities . . such as putting on aprons and overalls [and] removing shirts.” The Court held that these activities – which came to be referred to as “donning and doffing” — are “work” for which employees should be compensated.

Just three years later, in 1949, Congress amended the FLSA in order to provide that the compensability of time spent donning and doffing clothing, as well as washing, was an appropriate subject for collective bargaining. Thereafter, unions were free to negotiate with employers with respect to whether employees would be paid for “time spent in changing clothes or washing at the beginning and end of each workday.” And, not too surprisingly, in the rough and tumble of union negotiations, many employees ended up working under contracts which provided that they did not get paid for changing clothes, even if the clothing was required and took significant time to get in and out of.

In Sandifer v. United States Steel Corporation, decided earlier this week, steelworkers asked to be paid for time that they spent putting on and taking off fifteen items of “personal protective gear,” including flame-retardant outerwear, gloves, steel tipped boots, hard hats, and snoods. (For the uninitiated, a “snood” is basically a hood that covers the neck and shoulder area, rather like a balaclava.) Attorneys for the steelworkers argued that these items were “protective gear” and not “clothes” within the meaning of the FLSA. In contrast, the employer, US Steel, argued that these items were encompassed within the meaning of the phrase “changing clothes” and were appropriately covered under the union contract.

The Supreme Court relied on 1940s dictionary definitions of the words “changing” and “clothes” to decide the case, holding that “changing clothes” encompassed both changing from street clothes to work clothes and layering protective gear over work clothes. Thus, the court concluded, if a collective bargaining agreement provided that employees would not be paid for “changing clothes,” they would not be entitled to pay for time spent donning and doffing protective gear.

The opinion has been widely hailed as a victory for employers, but its “gotcha” effect is likely to be short lived. The next time the parties sit down at the bargaining table it’s unlikely that the putting on and taking off of protective gear will fly under the radar.

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem 2

Jan

14

2014

By Supreeta Sampath

According to the National Bullying Institute, one-third of Americans are bullied at work, and workplace bullying is on the rise. Recently the issue of bullying made national headlines when Miami Dolphins offensive tackle Jonathan Martin, accused lineman Richie Incognito of physical and verbal abusive behavior. The absence of state or federal legislation to address this troubling trend sends bullies the message that they can get away with such behavior as yelling, screaming, humiliating, and sabotaging an employee’s career. The legal void also signals to employers that they can turn a blind eye to bullying without fear of legal repercussions.

Compared to other western democracies, including Britain, Canada, France and Australia (which have all enacted anti-bullying legislation) the United States is in the dark ages on this important mental health issue. But at the state level, there are signs that this may be changing.

Suffolk University Law Professor David Yamada has drafted model anti-bullying legislation, known as The Healthy Workplace Bill. The Healthy Workplace Campaign defines workplace bullying as “repeated, health-harming mistreatment” that involves verbal abuse, offensive conduct that is threatening, humiliating, intimidating or work sabotage.

Since 2003, anti-bullying legislation has been introduced in 25 states (including California). While none has been enacted into law, there are currently 11 states that have bills under active consideration.

This kind of legislation will undoubtedly ignite the business lobby with their well-worn opposition arguments. Employer groups will continue to argue that anti-bullying legislation will open up the floodgates of litigation and clog our already overburdened courts because “overly sensitive” employees will run to file a lawsuit every time they have a bad day at work.

But this focus on the frivolous is a straw argument that trivializes the real cost of bullying to workers and businesses alike. The concern about legislating workplace civility can be addressed by careful drafting. Rather than fighting workplace bullying laws, employer lobby groups should put their energies into crafting a law that will prohibit abusive or humiliating treatment that no decent employer would sanction, while leaving supervisors free to constructively manage and discipline employees.

It would be nice if internal policies and company grievance procedures had put an end to the harm of workplace bullying. But that has not happened. What we know from past experience is that sometimes it takes a change in law to change behavior.

Before the passage of laws like Title VII and California’s Fair Employment and Housing Act, it was legally permissible to harass and discriminate against employees on the basis of their race, color, gender, sexual orientation, disability, age, and other now protected categories. Once these laws were in place, U.S. companies began holding their managers and employees accountable to eliminate discrimination and sexual harassment in the workplace.

The good news is that, according to a survey by one human resources professional organization, 56% of U.S. companies already have some sort of anti-bullying policy. Drawing on models from employers themselves, we should be able to frame a law that would eliminate frivolous claims by definition by requiring claimants to show not only of out-of-bounds conduct, but also documented harm. While there may be some who still try to file unworthy suits, careful crafting of legislation will ensure that their suits are tossed out. But throwing the baby away with the bath water is not the solution to a growing national problem. It’s time for California and other states in the union to get serious about enacting anti-workplace bullying legislation.

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

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5 New Year’s resolutions for California employers

Jan

1

2014

By Joan Herrington

It’s the time of year when we think about making a fresh start for the new year. Since I spend my days witnessing the consequences of workplace problems, I thought I would offer a few New Year’s resolutions I would like to see California employers make.

1. Communicate with your employees. Make sure they know what is expected of them and how they can succeed at their jobs. Uncertainty creates anxiety and anxiety creates inefficiency. Whenever practicable, consult with employees about the things that will affect them. Few things are more demoralizing than feeling ignored and unable to control your future.

2. Pay them a living wage. Your employees will be better able to focus on their work and productivity if they aren’t worrying about paying their bills. So how about increasing the wages your lowest-level employees earn to something livable? Some cities are demanding that employers do just that through their living wage ordinances. And, at the state level, California is raising the minimum wage this year. Although California’s minimum wage is not due to increase until July 1, 2014, some cities will increase their minimum wage rates as of January 1, 2014. For example, San Francisco’s minimum wage is increasing from $10.55 to $10.74 an hour and in San Jose the rate will go up from $10 to $10.15 an hour. Check your city’s ordinances to see if it will also increase the minimum wage rate in 2014. By bridging the wage gap, we can get the economy back on track for working people. In fact, studies by renowned economists show that such minimum wage increases can “serve to stimulate the economy as low-wage workers spend their additional earnings potentially raising demand and job growth.”

3. Don’t underestimate the contributions of older workers. Older workers are an experienced, dedicated, under-utilized resource. Studies show that older workers are skillful, reliable, focused, and loyal employees.

4. Welcome veterans into your workforce. Our armed forces have had a hard enough time fighting for us in foreign lands. Don’t make our workplaces another battlefield for them. Be sure to update your discrimination policies to prohibit discrimination and harassment based on military or veteran status. Assembly Bill 556 amended the Fair Employment and Housing Act to add military or veteran status as a protected characteristic. Train hiring officers so that they may inquire into an applicant’s military or veteran status in order to provide a preference in hiring, but make sure they know to keep this information confidential. And train managers to assist veterans with re-entry into the civilian workforce.

5. Don’t let a discrimination or harassment complaint become a trigger for retaliation. Every employee complaint of unfairness deserves a prompt, thorough investigation. The EEOC provides guidelines on conducting investigations. If you find that someone engaged in harassment or discrimination, don’t make excuses for them. Take action to stop the wrong-doing and punish the wrong-doer. Even if your investigation exonerates an accused supervisor, take affirmative steps to prevent retaliation. It’s hard for someone accused not to bear a grudge. Remember that how you handle complaints and prevent retaliation speaks volumes to all of your employees about your quality as an employer.

May 2014 be a productive and fulfilling year for you and the people who work so hard to make your business a success!

About Joan Herrington

As a former Administrative Law Judge with the California Fair Employment and Housing Commission, Joan focuses on protecting employment rights. Joan helps the Department of Fair Employment and Housing enforce the Fair Employment and Housing Act by representing employees in lawsuits, such as discrimination and harassment based on race, national origin, color, pregnancy, sex, sexual orientation, disability, medical condition, age, and religion. Joan also focuses on protecting employees and whistleblowers from unlawful retaliation. As a qualified and experienced mediator, Joan also helps resolve employment disputes.

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Avoiding the impending catastrophe for 1.3 million long-term jobless Americans

Dec

23

2013

By Afshin Mozaffari

As we celebrate this holiday season, let’s remember our fellow citizens who are struggling with the unprecedented chronic unemployment caused by the Great Recession of 2008. While the most recent reports indicate the rate of unemployment is down to 7 percent, the lowest unemployment rate since November 2008—the number of long-term unemployed (those without a job for 27 weeks or more) continues to be stubbornly high. Indeed, while the unemployment rate declined overall by .3 in November, the actual number of long-term unemployed people remained essentially the same at 4.1 million. Compare this to 2007, when only around 1.2 million people were long-term unemployed.

In the face of this reality, Congress excluded extension of unemployment benefits from the bipartisan budget compromise it reached last week. Without congressional action, this means some 1.3 million workers will lose their extended unemployment benefits on December 28th of this year. And the number of chronically unemployed people losing benefits will grow every month thereafter. Needless to say, long-term unemployment and cessation of unemployment benefits is a tragedy for the unemployed workers and their families. However, persistent long-term unemployment also presents troubling long-term repercussions for the economy as a whole, including declining labor force participation, less consumption and a smaller tax base.

Long-term unemployment “is not exclusive to any one industry [or] occupation.” The demographic composition of the long-term unemployed is also diverse, but it is evident that workers ages 55 and older suffer a higher percentage of long-term unemployment of all age groups. Men are also more likely than women to be long-term unemployed.

The economic affect of long-term unemployment hinges, in part, on the issue of whether the workers who are unemployed for a long period of time would at some point become unemployable. This was the subject of a 2012 study by William Dickens and Rand Ghayad of Northeastern University who studied the relationship between job openings and unemployment. Generally, the more job openings there are, the fewer workers there are out of work. But when it comes to the long-term unemployed, a rising number of job openings does not seem to substantially reduce the number of long-term unemployed workers. According to the Nobel Prize winning economist, Paul Krugman, this dangerous trend is creating “a permanent class of jobless Americans.” He predicts that this reality and the loss of unemployment benefits, will in turn, depress the economy as a whole.

The extension is essential to the long-term unemployed, like Sheri Minkoff of Pittsburg, Pennsylvania, who is about to lose her only source of income. Sheri lost her job for the second time in the past 5 years. The first time, she lost her job as a director of a nonprofit that lost its invested funds to the massive Ponzi scheme by Bernie Madoff that defrauded Sheri’s employer and thousands of other investors of billions of dollars. Sheri was able to find employment two years later as a coordinator at a domestic violence shelter, only to lose that position due to the lack of funding. During this period, Sheri has lost all of her retirement benefits and savings. At the age of 50, she spends six days per week trying to find employment. Sheri, and more than a million long-term unemployed Americans will continue to struggle to find employment even with the extension of unemployment benefits. The benefits will not only help cover their basic necessities like food and housing, but will enable them to continue their active search for work.

The White House and Democrats in Congress have called for extending the unemployment benefits, and vowed to try to retroactively extend unemployment benefits in early 2014. There are also a number of outside groups that are organizing a campaign to pressure Congress to extend the Emergency Unemployment Compensation Program. The National Employment Law Project (“NELP”), a non-partisan organization that conducts research and advocates on issues affecting low-wage and unemployed workers, is collecting and distributing true stories of the long-term unemployed and urging everyone to contact their congressional representatives. Without congressional action, more than a million Americans and their families will be left in desperate financial straits and the economy will suffer as a result.

High Court ruling threatens wage theft victims’ rights

Dec

18

2013

By Eugene Lee

In the early 1800s, workers in England rioted against unemployment, wage cuts and near-starvation, demanding “a fair day’s pay for a fair day’s labour.” Few would think to challenge such a demand. But two centuries later, fair pay remains as elusive as ever for low wage earning workers.

Consider the case of Everardo Carrillo and Juan Chavez. Both men worked for logistics companies with warehousing operations in California. According to Chavez, “I went 28 consecutive days without a day off. There were no lunch breaks, no rest breaks. ” Carrillo said, “I once worked from 7 a.m. to 2 a.m. the next day. . . If you asked questions [about pay arrangements], you could be laid off for two or three days or a week.” Carrillo, Chavez and four other workers took their employers to court in a class action suit seeking to recover more than $10 million in wage theft.

Today’s workers are facing what commentators have described as an “invisible epidemic” of wage theft. According to a survey conducted by Fast Food Forward, an advocacy group, a whopping 84% of fast food workers in New York City reported being victims of wage theft. That’s 4 out of every 5 fast food workers. Meanwhile, according to CNN Money, the number of collective lawsuits filed in federal court in 2011 alleging wage and hour violations of the Fair Labor Standards Act were up 400% from 2000 levels.

Until recently, workers who have been victims of wage theft have had the option of filing a complaint directly with the California Labor Commissioner, otherwise known as the California Department of Labor Standards Enforcement, or “DLSE.” The DLSE offers a number of benefits for workers over the usual route of filing a civil lawsuit: no filing fees, shorter processing times, hearings before deputy commissioners who appreciate and understand low wage worker conditions, assistance with collecting on any judgments awarded by the DLSE, streamlined evidentiary procedures, etc. For workers with wage claims too small to attract the interest of contingency fee attorneys, the DLSE may be their only feasible option.

Now that right is being threatened.

In a decision issued in October 2013, the California Supreme court held that employers can force employees who have signed arbitration agreements to give up their right to file a complaint with the DLSE. These workers must now submit their disputes to arbitrators, essentially private judges. As any attorney who represents workers will tell you, arbitration is a forum that is best avoided by workers. For one thing, arbitrators overwhelmingly tend to favor employers – who are often repeat customers – over employees – who the arbitrators will likely never see again. Arbitration can also be expensive, particularly compared to the DLSE complaint process which has no filing fees. Finally, according to Prof. Alex Colvin, a researcher at the Pennsylvania State Department of Labor Studies and Industrial Relations, employees who sue their employers instead of going to arbitration not only win more, they get bigger awards.

But not all hope is lost. The Supreme Court opinion went on to note that workers are still free to challenge the fairness or “unconscionability” of the arbitration agreements they had signed. Moreover, if workers can show that the arbitration would be less “affordable” and “accessible” than filing a complaint with the DLSE, that could “support” their challenge.

Most employees are not equipped to fight the battle against forced arbitration on their own. And most contingency lawyers cannot afford to take on cases of wage theft unless the losses are in the tens of thousands of dollars. So does this mean that low-wage workers have no choice but to seek redress in the unfriendly arbitration forum? Not necessarily. In select cases, the DLSE legal department can choose to step in or “intervene” on behalf of the worker.

This is what actually happened for one of my clients. After I filed a DLSE complaint for my client, I learned that he had signed an arbitration agreement. The employer’s law firm immediately filed a petition to compel arbitration in civil court, asking the court to order my client to dismiss his DLSE complaint and participate in what no doubt would have been a long, expensive, and probably futile arbitration. Given the relatively small size of my client’s claim, challenging the petition or proceeding to arbitration probably would have made little economic sense.

Cue the DLSE legal department. A DLSE lawyer called me and let me know that the DLSE legal department would be willing to step in and fight the employer’s petition on my client’s behalf. In the end, the threat of that intervention was enough to get the employer to cave. The case resolved and my client and I thanked the DLSE lawyers profusely.

I’m encouraged that the DLSE took action to vindicate my clients’ rights and I’m rooting for the agency to keep up the good work. Forcing low wage workers into arbitration is really just an attempt to cut them off at the pass that would lead to recouping their stolen wages. The more employers learn that the DLSE is serious about being a law enforcement agency, the more likely wage and hour laws will be followed and forced arbitration won’t serve as a get-out-of-jail-free card for scofflaw employers engaged in wage theft. As worker advocates fight for a legal standard that can keep the DLSE’s doors open to low wage workers, DLSE intervention in these cases stands as an essential bulwark against exploitation of low-wage workers.

About Eugene Lee

Eugene D. Lee represents employees throughout California who seek to protect their legal rights in the workplace. Mr. Lee has obtained numerous six- and seven-figure settlements and judgments for employees throughout California. Mr. Lee received a B.A. with honors from Harvard University, and a J.D. with honors from the University of Michigan Law School. Prior to starting his own firm, Mr. Lee was a lawyer in the New York offices of Shearman & Sterling and Sullivan & Cromwell.

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Nelson Mandela and the importance of civil justice

Dec

14

2013

By Mark Kleiman

The memory of Nelson Mandela is being honored for his courageous and deeply dignified stance while imprisoned, and for his astute and successful efforts at reconciliation and nation building when he was finally released in his 70s.

Very few people remember that the man who helped lead a revolution was not always ready to die for his cause. Sixty years ago, Nelson Mandela was a civil rights lawyer in the only African-run law firm in South Africa. He represented victims of police brutality and the overbearing racial authority in his country. The white-run government could not tolerate these challenges and used the apartheid laws to force the firm to move out of downtown Johannesburg and into a remote area. Mandela could not get to the courts, and his clients could not get to him. Unable to practice under these conditions, Mandela and his partner had to close their practice.

Blocked in his efforts at peaceful reform and appalled by the government’s wanton demolition of an all-Black Johannesburg suburb, Mandela took up the path of armed resistance. This was the beginning of an armed struggle that went on for over thirty years, taking tens of thousands of lives. Mandela spent twenty-seven of those years in prison, much of it in solitary confinement.

It is no accident that a smart and determined leader would seek justice under the law. And it is no surprise that after being thwarted at every turn, he sought that justice through other means.

After years as an organizer I went to law school to help get justice in this country. I was confident that unlike South Africa, I lived in a country with a rich history of democratic feistiness and a strong commitment to fair enforcement of the laws. I now wonder if I was wrong.

In the United States we are witnessing an unprecedented attack on legal rights. One courthouse door after another is slammed – on workers, on women, on people of color, and even on everyday consumers. Instead of club-swinging southern sheriffs or snarling lynch mobs, the new weapon of choice is a judicially enforced, secret system of private judging called arbitration. Arbitration strips away Americans’ constitutional right to a jury trial and drops them into the murky world of closed-door judging. It’s a rigged game where one side hires, fires, and pays for the referees. Arbitrators at one top private judging firm ruled for employers and against employees, for big business and against consumers 93.8% of the time. And these decisions are made in secret, instead of an open courtroom.

Time after time the U.S. Supreme Court has twisted federal law to strip away these constitutional rights. It Walmart v Dukes it ruled that over a million women working at Walmart could not band together to sue for sex discrimination that stole wages from them. Rights to equal pay, a safe workplace, and equal treatment have been stripped away by secret tribunals. Now that same Supreme Court, in ATT Mobility v Concepcion, has also ruled that fine print language buried in 30-page user agreements can be used to keep millions consumers from banding together in class action suits or workers from demanding that they be repaid for meal and break time stolen from them.

As we honor Mandela, it bears remembering that his broad vision for his country, and his skills as an orator bring to mind an American leader with those same traits, John Fitzgerald Kennedy. President Kennedy may have had Mandela in mind when he prophetically warned that “those who make peaceful change impossible make violent revolution inevitable.”

The engineers of current attacks on access to justice in America would do well to reflect on JFK’s cautionary words, and on the fiery trajectory of Nelson Mandela. If the life of the man being honored this week proves anything, it proves that without justice, restoring security for America’s working people will require a lot more than lawsuits.

About Mark Kleiman

A long-time human rights and consumer activist, Mark has filed cases that have led to over $500 million being recovered for U.S. taxpayers. He has won multimillion dollar verdicts in consumer fraud and medical malpractice trials.

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