A turning point in paid family leave: California measure has broad political and medical support

A turning point in paid family leave: California measure has broad political and medical support
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Charles Anderson, a new father who was denied parental leave by his employer, and his baby girl.

By Jenna Gerry

With unprecedented bi-partisan support, a bill that would expand parental leave to 2.7 million more of California’s working families is on Gov. Jerry Brown’s desk. Introduced by Sen. Hannah-Beth Jackson (D-Santa Barbara), SB 654, the New Parent Leave Act, would extend six weeks of job-protected bonding leave to California workers at companies with at least 20 employees within 75 miles of the employee’s worksite.

This bill addresses one of the biggest barriers workers face when trying to take Paid Family Leave — knowing that their job may not be there when they get back. This bill is remarkable not only for what it will provide to millions of California workers but for the justified bi-partisan support it received on the Assembly floor.

Here in California, the state Chamber of Commerce has consistently put every bill expanding the right to take job-protected parental leave on its infamous “Job Killer” list. In the past, a bill’s placement there has ensured that no Republican legislator would support it, and it has often meant that few to no moderate Democrats would either. Indeed, it can be the kiss of death for progressive legislation, even in our Democratic-controlled Legislature. So, as SB 654, prominent on the “Job Killer” list, headed to the Assembly floor in August, Jackson and the bill’s sponsors were not sure if we had the 41 votes we needed. But something miraculous happened.

After hearing her fellow Republicans voice staunch opposition, Assemblymember Melissa Melendez (R-Murrieta) stood up to speak in support of SB 654. She described her own experience of deciding to leave the military when she became a mother — in part because she would have received only six weeks off after giving birth. She could not imagine having to leave her child that fast. Melendez called on her colleagues to consider that we guarantee the job of any member of the military reserves if they are called to active duty. And she asked whether “the birth of a child is less important than service to one’s country.” She also challenged past rhetoric from both sides of the aisle justifying votes against parental leave measures.

When the final vote came down, nine Republicans joined 45 Democrats in favor of SB 654. We hope this was a turning point, and our state and nation can now transcend partisan politics to understand, finally, that family leave affects us all. As Melendez put it, “Republicans and Democrats agree that family is important, that children are important. And, if you believe that, you have to put your money where your mouth is.”

California’s health community is also speaking out for SB 654. More than 120 California health care professionals and 16 health care organizations — including the American Academy of Pediatrics’ California chapter — delivered a letter to Governor Brown this week urging him to sign it. “This is about clear empirical evidence,” said one signatory, Dr. Paul Chung of UCLA, “showing that the health and well-being of parents and their children — the present and future of our state’s economic productivity — are improved by job-protected paid parental leave.”

In addition to my organization, Legal Aid Society-Employment Law Center, several groups that advocate for policies to support the viability of working families cosponsored and helped promote SB654: the California Employment Lawyers Association, Equal Rights Advocates, and the California Work and Family Coalition (which counts these groups and many more among its members).

Now it is time for Governor Brown to make parental leave a reality for millions more California workers, especially because they’re already funding six weeks of it through payroll deductions. But parental leave is about more than the bottom line; it is about ensuring the wellbeing of California families and the state as a whole.

Jenna Gerry is an attorney at Legal Aid Society – Employment Law Center (LAS-ELC), where she advises workers struggling with family and medical crises and participates in legislative advocacy to expand family-friendly workplace policies.  LAS-ELC is a co-sponsor of SB 654, along with the California Employment Lawyers Association, the Work and Family Coalition, and Equal Rights Advocates.  

 

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Why California needs stronger parental leave policies

Why California needs stronger parental leave policies

By Menaka Fernando

At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child.  It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.

Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.

The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.

Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child.  As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.

Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program.  A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.

In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.

Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.

The need for expanded and equitable access to parental leave in the state cannot be understated.  The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented.  Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates.  Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and  higher high school graduation rates.

While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.

Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.

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Sexism and civility in today’s legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

Sexism and civility in today's legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

By Eduard Meleshinsky

In a clarion call for civility among attorneys, Magistrate Judge Paul Grewal sanctioned a defense attorney for his tactics in a civil rights case, and excoriated him for “repeatedly and unapologetically flout[ing]” the Northern District of California’s Guidelines for Professional Conduct, the Federal Rules of Civil Procedure (FRCP), the court’s prior order, and – in this author’s opinion – offending standards of basic civility most of us learned on the playground, as children. The order is available here.

In connection with a deposition noticed by the mother of a pretrial detainee who committed suicide while in jail, the attorney for the public entity and employee defendants produced documents in a “physically cracked and unusable disc” on the day of the deposition, delayed correcting this abjectly deficient production for over a month after being repeatedly asked to do so by plaintiff’s counsel (only to produce documents defendants’ attorney already knew to be in plaintiffs’ possession), made “extremely long speaking objections” in depositions ordered by the court, and many more violations. Tellingly, defendants’ attorney made “no attempt to defend any of this conduct.”

The unprofessional conduct did not stop at discovery abuse.  Escalating his disgraceful misconduct from unprofessionalism to sexism, defendants’ attorney told one of the plaintiffs’ female attorneys, at a deposition she was taking, “[D]on’t raise your voice at me. It’s not becoming of a woman ….” In briefing his opposition to the sanctions request, defendants’ attorney doubled down on his statement with a sorry-not-sorry apology (“a halfhearted politician’s apology ‘if [he] offended’ Plaintiff’s counsel”).

As Judge Grewal explained in his order, defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” The judge further elaborated that such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” The Court found that these types of statements – in addition to harming the many female attorneys who regularly endure similar treatment – degrade the legitimacy of the legal system itself.

Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.” This malignant attitude has deep roots in the legal profession. Even the Supreme Court of the United States in Bradwell v. The State (a case that has rightfully taken its place among Plessy and Korematsu as part of the constitutional anti-canon) has perpetuated these gender stereotypes.  In upholding a state law prohibiting women from practicing law on account of their gender, the Court opined:

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

A lot of progress has been made since 1872: the 19th Amendment was ratified; Congress enacted the Equal Pay Act and Title VII of the Civil Rights Act of 1964, and amended the same to prohibit pregnancy discrimination; and Sandra Day O’Connor was confirmed as the first of four women so far to serve on the high court. However, despite the important gains made in the fight for gender equality in the workplace and beyond, much has remained the same in the legal profession for female attorneys.

For example, the opportunity for female attorneys to advance to leadership roles in law firms remains stymied, female attorneys are judged more harshly if they lack “interpersonal warmth” and are not recognized for their legal competence to the same degree as their male counterparts for career advancement purposes, and, more generally, the gender pay gap remains ever- present and ever unaddressed. In light of the work that remains to be done in making women’s equality a reality, our profession should, at the very minimum, not tolerate Mad-Men-styled sexist remarks from its members.

Fortunately, Judge Grewal suffers no fools. Because of the defense attorney’s egregious misconduct, the jurist awarded plaintiffs their fees and costs in bringing the motion for sanctions, as well as attorneys’ fees for depositions, including the deposition during which the sexist comment was made. Recognizing that monetary compensation for plaintiffs’ attorneys’ fees and legal costs still fell short of a just result, Judge Grewal ordered the “specific and appropriate sanction” of compelling defendants’ attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation … and submit a declaration to the court confirming his compliance with this order.”

One hundred and forty-four years have passed since Bradwell, yet we continue to see conduct in the legal profession that perpetuates harmful gender-based stereotypes.  Too often, that conduct is simply dismissed without any consideration of its broader impact on our progress toward gender equality.  Courts should emulate Judge Paul Grewal, giving discrimination no quarter and enforcing basic civility in the legal profession.

An earlier version of this post appeared on the Bryan Schwartz Law blog under the title “Court Sanctions Defense Attorney for His Sexist Remarks to Opposing Counsel.”

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Judicial confirmations in 2016: The myth of the Thurmond Rule

By Kyle Barry

“I think it’s clear that there is no Thurmond Rule” – Republican Senator Mitch McConnell

“There is no Thurmond Rule” – Republican Senator Orrin Hatch

With only 11 judges confirmed, 2015 was the worst year for judicial confirmations since 1960. Thirty-one nominees were left pending, including 14 noncontroversial nominees ready for votes on the Senate floor. With this abysmal record, it’s clear that the Senate’s unapologetic Republican majority will persist in its strategy of obstruct and delay, trying to keep vacancies open and limit the president’s influence on the judiciary. The excuses have started already, with Republican leadership alluding to a supposed Senate custom, known as the “Thurmond Rule,” of cutting off judicial confirmations during a presidential election year. The Thurmond Rule is complete nonsense, but before explaining why, it’s worth noting the destructive results of last year’s historic obstruction and where things stand today.

The lack of confirmations in 2015 was an enormous step backward. At the start of 2015, there were only 43 vacancies and 12 judicial emergencies, numbers that have since increased by 63 percent and 166 percent, respectively. On January 1 vacancies climbed back to 70 for the first time since May 2014, and by month’s end four more seats will be empty. Fourteen states now have multiple vacancies; nine states have three or more; and six states—Texas (9), Pennsylvania (6), Alabama (5), Florida (4), New Jersey (4), and New York (4)—have at least four vacancies. In Texas, the longstanding epicenter of the vacancy crisis, eight of the nine vacancies are judicial emergencies; in New Jersey, that’s true of all four. In these corners of the country, justice is on hold until the Senate resumes its basic constitutional function of confirming judges.

In 2016, the good news is that, before the Senate adjourned last year, Majority Leader Mitch McConnell agreed to hold confirmation votes for five judicial nominees by Presidents’ Day recess, starting on January 11 with Third Circuit nominee L. Felipe Restrepo. Only against the Senate’s recent record could such a modest agreement represent progress, but it does mean that by mid-February in 2016 we’ll have nearly half the total confirmations we had all of last year. It also means, assuming all five nominees are confirmed, that four judicial emergencies will be filled, including one on the Third Circuit.

The bad news is that Republicans will inevitably rely on these confirmations when, soon after, they invoke the so-called “Thurmond Rule” to shutdown confirmations entirely. First they’ll point to this early-year, five-judge agreement as a magnanimous gesture that warrants unequivocal praise. Then they’ll say, sorry, no more; it would be inappropriate to move more judges because of the longstanding Thurmond Rule. They’ll say that the rule dates back to 1968, when Senator Strom Thurmond objected to President Lyndon Johnson elevating Abe Fortas to Chief Justice during an election year. Since then, they’ll say, the Senate has applied the Thurmond Rule to block confirmation of all judicial nominees in the latter months of a presidential election year. Judiciary Committee Chairman Chuck Grassley has already primed the pump, saying that the rule goes into effect “next summer.” Media reports have reinforced the concept, restating the rule in formal terms. According to one Politico report, “[t]he Thurmond Rule . . . holds that the Senate shuts off the confirmation valve of lifetime judicial appointments in July of an election year.”

Do not believe it.

The Thurmond Rule is not real. It is a myth, a figment of the partisan imagination invoked to give an air of legitimacy to a strategy—blocking even the most noncontroversial of judicial nominees—that is pure obstruction. Most obviously, there is no Thurmond Rule in the formal sense—no law, senate rule, or bipartisan agreement renewed each congress. Its existence also is belied by historical practice. Going back to Reagan, the Senate has confirmed an average of 16 judges in the second half of presidential election years, and in 2008 the Democratic Senate confirmed 22 judges in the last seven months of the George W. Bush administration, including 10 district court judges in September. It is telling that these numbers well exceed the 11 confirmed in all of 2015, when the Senate was supposedly operating under “regular order.”

 

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Even the final years of two-term presidencies have been relatively productive; on average, the respective eighth year for Reagan, Clinton, and George W. Bush (each of whom faced an opposition senate) yielded about 10 percent of their total judicial appointments. Bush was the lowest of the three, with 28 judges confirmed in 2008 for 8.6 percent of his 324 total district and circuit court confirmations. It would take 35 confirmations this year for President Obama to appoint 10 percent of his total judges in 2016, and about 30 confirmations to hit Bush’s rate of 8.6 percent.

President
Judges Confirmed in 8thYear
Total Confirmations
% of Total Confirmations in 8th Year
George W. Bush
28
324
8.6%
Bill Clinton
39
375
10.4%
Ronald Reagan
40
379
10.6%

 

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The above chart also shows that election-year confirmations have not been limited to district court judges. A couple of noteworthy examples within the data: In 2008, Bush nominated Fourth Circuit Judge Steven Agee in March, Judiciary Committee Chairman Patrick Leahy held Agee’s hearing on May 1, and the full Senate confirmed Agee on May 20. In 1980, President Carter nominated Stephen Breyer to the First Circuit in November, and the Senate confirmed Breyer in December on a vote of 80 to 10.

All this historical data was perhaps best summed up by Chuck Grassley himself, who in 2008 spoke at a hearing dedicated to arguing that the Thurmond Rule does not exist: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term,” and the Thurmond Rule, Grassley said, is “plain bunk.”

Good words for a Judiciary Committee Chairman to live by, and those to which Grassley should be held in 2016.

Kyle Barry is the Director of Justice Programs at Alliance for Justice, a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society.   This post originally appeared on the Alliance for Justice Blog.

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Worker classification and secure work in the “sharing economy”

Worker classification and secure work in the “sharing economy”

FullSizeRender-1By Veena Dubal

Last month, a California Labor Commissioner decided that Barbara Ann Berwick was an employee of (venture capital darling) Uber for purposes of employment protection under California law.   A charged media flurry followed.   If Uber drivers were employees, then was the company’s highly profitable business model kaput?   Were casual Uber drivers going to be entitled to minimum wage and business expenses (like gas and car upkeep)?  What did this mean for the potential success of other aspiring businesses in the so-called “sharing-economy”?  How did the commissioner come to this decision?  What defines an employee?

While the Berwick decision forced many non-lawyers to think about worker classification for the first time, this debate is nothing new in the tort context.   Courts have long struggled to distinguish independent contractors and employees when determining vicarious liability.   Who should be responsible for the negligence of a worker?  This question, under the common law, turned on an unwieldy analysis of whether that worker was an independent businessman, engaged in his own entrepreneurial dealings, or an employee laboring for an employer.  Far from being easily identifiable, the definition of an employee for tort purposes has resulted in much head scratching, with courts coming down differently while applying the same facts to the same (capacious) set of rules.

But where did this idea that only common law “employees” get work safety net benefits come from?  What few understand is that applying this dichotomous classification in tort law to the context of employee protections is not natural or necessary.   In fact it is relatively recent.  Whether or not the application makes good legal sense or serves broader social goals is worth pondering.

In the tort context, the inquiry boils down to an analysis (crudely put) about who deserves blame, that is, who is really in charge (or, in legal terms, who controls the means and manner of production).   U.S. courts first began to borrow this analysis and utilize it in the employment protection context when businesses tried to evade New Deal legislation put in place to protect the ordinary worker.   Prior to efforts by business representatives to dodge the costs associated with secure work, service workers – including insurance salesmen, taxi drivers, and newspaper boys – were protected under the law.   Indeed, the legislative history of the New Deal reveals no Congressional debate on whether or not “independent contractors” should be covered.  The term used over and over again, by both representatives of manufacturing and of labor, is “worker.”

Today, in what is popularly termed the corporate “sharing economy” – or perhaps more aptly, the “sharing-the-scraps economy” – companies are borrowing from post-New Deal efforts by businesses to increase their own profit through use of “contractors,” evading laws intended to force them to take responsibility for their workers.  Uber, for example, is reaping huge profits from the labor of casual drivers by calling those workers “independent businessmen.”  The company’s position has been that this contractor status of workers means that the company is not liable for the worker’s negligence – OR for the health, safety, and financial security of Uber drivers.

While across the country, judges, commissioners, and regulators have come down differently about whether or not Uber drivers are employees, the history and legislative intent of employment protections begs the question:  why are courts applying the reasoning of tort law to social policy that is intended to create a safety net for workers?

As we enter a historical moment when half the working population will be laboring casually and precariously as a result of evolving business models, we must ask not, “who is an employee” under the common law, but how do we use laws and regulations to create stable and secure work environments?

Veena Dubal is an Associate Professor at University of California Hastings College of Law.  Professor Dubal’s research focuses primarily on law and social change in the context of work law.  Her dissertation, a three year ethnography, examines the work lives and worker collectivities of taxi drivers in San Francisco. Her research suggests that conventional wisdom on lawyering on behalf of low-income independent contractors needs to be re-examined and re-configured based on the desires and everyday realities of these workers.  An earlier version of this blog post was published on the author’s blog.

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The March for Jobs and Freedom continues: A daughter walks in her mother’s footsteps

The March for Jobs and Freedom continues: A daughter walks in her mother's footsteps

By Tiren Angela Steinbach

march

My mother grew up in a middle class African American family in Hyde Park, Chicago.  She graduated from high school in 1963 and was enrolled in Skidmore College for the fall. As a girl, she was a dancer, so she convinced her parents to send her to dance school in Paris the summer before she started college.  Paris in the early 60s was the mecca of cool, the epicenter for Black intellectuals and artists who had left the United States to find greater acceptance in the City of Lights.  So, in the summer of ‘63, eighteen years old, my mom flew off alone to Paris, which was horribly romantic in theory but rather lonely in reality. This was particularly true if your French was less that exemplary, which was, unfortunately true for my mother.

My mother was alone and desperate for her mother tongue, so she read the International Herald Tribune every day cover to cover. One day, there was a notice on the back pages: “Interested in Civil Rights?  Want to talk with other folks about the March on Washington? Come to Café Blah de blah blah at 4 p.m.” It was signed J.B.  My mother circled the notice and went to Café Blah de blah at 4 o’clock.  The café was overflowing with dozens of American ex pats, many African American, all sitting around drinking café lattes and discussing the March on Washington for Jobs and Freedom that was planned for the following week.  The small café was filled with a cacophony of American-accented voices speaking at once, asking, “What was it all about?”  “What should we do?” “What does this all mean for Negros – is this really going to make a difference?”  Finally the host of the meeting, J.B. – James Baldwin – stood up and said simply, “It’s time to go home.  Our people need us.”

My mom went home.  She changed her ticket and flew back to Chicago the day before the march.  But when she got there, her parents’ house was empty. She went to her aunt’s place next door – empty. It was like the whole of Hyde Park was empty, all gone to Washington DC to take part in history. No one had been expecting her so there was no message, no instructions, nothing.  Finally she found a scrap of paper written in her twin sister’s handwriting that had a name and number. She called it and a man on the other end said that the last chartered train to DC was leaving in two hours and she better get to the station if she wanted to get on board. So she did.

podiumShe arrived in DC with hundreds of thousands of people there to march to support civil rights. My mother was swept out of the train station into the crowd flowing like a human river towards the Lincoln Memorial.  There, a queue of speakers took the stage to address the crowd, among them Martin Luther King Jr., who delivered a thoughtful speech about the emancipation proclamation and the national legacy of racism.  Some say that it was gospel singer Mahalia Jackson, who was standing nearby on the stage, who called out, “tell them about your dream, Martin!” And my mom stood in a crowd of over 200,000 listening to the speech that would later be recognized as a transforming moment of the Civil Rights Movement.  That day, my mom never found her mother or father or her twin sister or aunts, uncles, cousins, grandfather, and neighbors, but she knew that they were there with her somewhere in the crowd.  And she knew that her world had changed forever.

My mother started college several weeks later.  She joined SNCC – the Student Non-violence Coordinating Committee She joined SDS – Students for a Democratic Society.  She joined the MOVEMENT…and never looked back.  A couple years later, in 1965, while organizing for another march on Washington to oppose the Vietnam War, my mom got a call from a graduate student at Rochester, saying that he had three busloads of people for the march but needed to connect to an organization to get them to DC. My mother told the grad student to come to a planning meeting in New York City, and he did. That man was my father. And the rest, as they say, is history.

I share this story as a call to us all, J.B.’s call that my mother answered, “to go home, our people need us.”  And home is not only our home, but the streets and jails and prisons and homeless shelters and veterans homes and community centers and clinics and legal aids and public defender offices and all places we are needed to advocate for justice. And our people are all people whose voices are silenced and stories vilified and humanity stolen – all people for whom the law has been wielded as a weapon against them rather than a tool for their equality.  And on this journey for justice, we will sometimes feel alone and scared and far from comfort, but our spirits will be buoyed by the many others who have also answered the call, and comforted by knowledge that we are part of global movement – people raising hands up and voices loud and putting lives at risk for justice.  And we will need to be lifted by words and wisdom of those who preach proudly to the choir because they know the power of their sermons is what inspires the choir to sing our loud and proud and powerfully for justice – justice that looks like love in public. And we must answer this call and never look back because today, more than ever, our people need us.

Tirien Angela Steinbach is the executive director of the East Bay Community Law Center, the community-based clinic for Berkeley Law School, where she graduated from law school in 1999. This post was written from her life experiences in hopes of inspiring a call to justice.  It originally appeared on the EBCLC blog under the title “J.B.’s Call and the March for Jobs and Freedom.”

 

Our overly-litigious society: The justice system is out of control 1

Our overly-litigious society: The justice system is out of control

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By Craig Byrnes

I’m a trial lawyer.  When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.

The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here’s what I say to these folks.

Let’s Play “Who Have You Sued?”

I usually start off with a little party game I like to call, “Who Have You Sued?” It goes like this: I ask the person, “Have you ever sued anyone, or been sued?” The next question is, “Do you know anyone who’s been sued, or who’s sued anyone?”

I feel completely safe asking these questions, because no one’s ever answered yes to either question yet.

Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don’t even know anyone who has. Within a full degree of separation — which is a lot of people, when you think about it — you have probably had no contact with the court system.

As for our being an “overly litigious society,” did you know that, from 2009 – 2010, lawsuits in California actually *decreased* 11.6%?  As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed.

In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract.  You can’t blame those cases on greedy plaintiffs sticking it to the poor companies since breach of contract cases usually involve corporations suing each other. Tort cases, involving personal injury and wrongful death — the sorts of things you hear about people suing for — were about 6% of the courts’ dockets in 2009.

So just to make the point here clear — the number of lawsuits is trending down, not up, and per capita, and California is toward the bottom of the list when it comes to lawsuits being filed.

Your own experience tells you that lawsuits are not out of control, because you’ve never sued anyone and you don’t know anyone who has. The data says that lawsuits are not out of control — they’re actually trending down.

We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?

But What About the Big “Hot Coffee” Verdict?

But how about all those out-of-control verdicts? How about the lady who spilled hot coffee in her lap and got 150 million dollars?

Litigants who win big verdicts are sort of like people who win the lottery. You’ve heard it happens, but you’ve never met anyone it’s happened to.
There are a lot of reasons for that.

Part of it is that what really happens would never make the news. It’s too boring. Did you know that the median verdict in California personal injury cases is about $115,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what’s really happening out there.

The other thing the news doesn’t tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone has heard of the McDonald’s coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don’t have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald’s showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.

And while you never heard any of those facts on the news, here’s what you also didn’t hear: the judge took away the jury’s verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury’s verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.

Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.

Sometimes, the facts just don’t make good stories. But they are still the facts. Despite what our own experiences and the facts tell us, the constant drumbeat of “frivolous lawsuits” and “overly litigious society” keeps legislators dancing to the insurance companies’ rhythm.

I know that this blog post’s title was “Our Overly-Litigious Society: The Justice System is Out of Control,” and that’s not at all what the evidence shows. Sometimes, you just can’t believe the headlines.

An earlier version of this blog post was published on the author’s Workplace Law blog.

 

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The Educational-Entertainment Complex exposed, under fire

The Educational-Entertainment Complex exposed, under fire

By Guest Blogger:  Matthew A. Kaufman

The National Labor Relations Board recently publicized the NCAA’s playbook.  For sports fans, the NLRB revealed all the things that we kind of knew (or should have known) were true, but now we know: it is all true.

Here’s what happened: on March 26, the NLRB ruled that Northwestern University football players were employees under the National Labor Relations Act and ordered that an election take place on collective bargaining.   The Board found that the Northwestern football team made overwhelming demands on the football players’ time.   During the season, players devoted 40 to 50 hours per week to the team, sometimes as much as 60 hours per week.  During the spring, the team required 12 to 20 hours per week of player time.  That does not leave a lot of time for a first-class education.   In that regard, scholarship football players received $61,000 a year in tuition, room, board and books.  Walk-on players – zero.  The NLRB found that playing football at Northwestern was pretty much a full-time job, hence collective bargaining.

In the big picture, college football seems ripe for unionization.  Last year, the Northwestern football team made a $7 million profit.  Northwestern isn’t even close to being in the league of the NCAA’s top earners.  In 2012, the University of Texas cleared $75 million in profit from football, and in 2014, UT will pay its coach $9.4 million.  Meanwhile, on the opposite end of the spectrum are the rank and file college players.  NCAA rules prohibit compensating them for their services.  The reality is that the chances of making the NFL are tiny.  The NFL Players Association advises hopeful professional football players to “come up with alternative plans for the future.”  Imagine if a trade school put that on its website.

The NCAA’s president, Mark Emmert, who himself earns over $1.7 million per year, denounced the NLRB’s decision as “grossly inappropriate.”  According to Emmert,

“To convert to a unionized employee model is essentially to throw away the entire collegiate model for athletics.  You can’t split that in two.  You’re either a student playing sports or you’re an employee of a university.  It would blow up everything about the collegiate model of athletics.”

Emmert almost got it right.  The collegiate model cannot coexist with a business model of college athletics.  But it was the NCAA and its member schools who long ago blew up the notion of bona fide amateur college athletics and turned their students into unpaid football players. The current model of collegiate football makes big money for colleges on the backs of an undercompensated workforce that, by rule, has no negotiating power.  Let’s let the players negotiate so that change can come to this fundamentally unfair system.

Robert Reich: The Real Job Killers 1

Robert Reich: The Real Job Killers

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By Robert Reich

House Speaker John Boehner says raising the minimum wage is “bad policy” because it will cause job losses.

The U.S. Chamber of Commerce says a minimum wage increase would be a job killer. Republicans and the Chamber also say unions are job killers, workplace safety regulations are job killers, environmental regulations are job killers, and the Affordable Care Act is a job killer. The California Chamber of Commerce even publishes an annual list of “job killers,” including almost any measures that lift wages or protect workers and the environment.

Most of this is bunk.

When in 1996 I recommended the minimum wage be raised, Republicans and the Chamber screamed it would “kill jobs.” In fact, in the four years after it was raised, the U.S. economy created more jobs than were ever created in any four-year period.

For one thing, a higher minimum wage doesn’t necessarily increase business costs. It draws more job applicants into the labor market, giving employers more choice of whom to hire. As a result, employers often get more reliable workers who remain longer – thereby saving employers at least as much money as they spend on higher wages.

A higher wage can also help build employee morale, resulting in better performance. Gap, America’s largest clothing retailer, recently announced it would boost its hourly wage to $10. Wall Street approved. “You treat people well, they’ll treat your customers well,” said Dorothy Lakner, a Wall Street analyst. “Gap had a strong year last year compared to a lot of their peers. That sends a pretty strong message to employees that, ‘we had a good year, but you’re going to be rewarded too.’”

Even when raising the minimum wage — or bargaining for higher wages and better working conditions, or requiring businesses to provide safer workplaces or a cleaner environment — increases  the cost of business, this doesn’t necessarily kill jobs.

Most companies today can easily absorb such costs without reducing payrolls. Corporate profits now account for the largest percentage of the economy on record.  Large companies are sitting on more than $1.5 trillion in cash they don’t even know what to do with. Many are using their cash to buy back their own shares of stock – artificially increasing share value by reducing the number of shares traded on the market.

Walmart spent $7.6 billion last year buying back shares of its own stock — a move that papered over its falling profits. Had it used that money on wages instead, it could have given its workers a raise from around $9 an hour to almost $15. Arguably, that would have been a better use of the money over the long-term – not only improving worker loyalty and morale but also giving workers enough to buy more goods from Walmart (reminiscent of Henry Ford’s pay strategy a century ago).

There’s also a deeper issue here.  Even assuming some of these measures might cause some job losses, does that mean we shouldn’t proceed with them?

Americans need jobs, but we also need minimally decent jobs. The nation could create millions of jobs tomorrow if we eliminated the minimum wage altogether and allowed employers to pay workers $1 an hour or less. But do we really want to do that?

Likewise, America could create lots of jobs if all health and safety regulations were repealed, but that would subject millions of workers to severe illness and injury.

Lots of jobs could be added if all environmental rules were eliminated, but that would result in the kind of air and water pollution that many people in poor nations have to contend with daily.

If the Affordable Care Act were repealed, hundreds of thousands of Americans would have to go back to working at jobs they don’t want but feel compelled to do in order to get health insurance.

We’d create jobs, but not progress. Progress requires creating more jobs that pay well, are safe, sustain the environment, and provide a modicum of security. If seeking to achieve a minimum level of decency ends up “killing” some jobs, then maybe those aren’t the kind of jobs we ought to try to preserve in the first place.

Finally, it’s important to remember the real source of job creation. Businesses hire more workers only when they have more customers. When they have fewer customers, they lay off workers. So the real job creators are consumers with enough money to buy.

Even Walmart may be starting to understand this. The company is “looking at” whether to support a minimum wage increase. David Tovar, a Walmart spokesman, noted that such a move would increase the company’s payroll costs but would also put more money in the pockets of some of Walmart’s customers.

In other words, forget what you’re hearing from the Republicans and the Chamber of Commerce. The real job killers in America are lousy jobs at lousy wages.

A special thank you to Robert Reich for letting us repost this compelling piece, which originally appeared on his blog, www.robertreich.org

ROBERT B. REICH, Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, was Secretary of Labor in the Clinton administration. Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written thirteen books, including the best sellers “Aftershock” and “The Work of Nations.” His latest, “Beyond Outrage,” is now out in paperback. He is also a founding editor of the American Prospect magazine and chairman of Common Cause. His new film, “Inequality for All,” is now available on Netflix, iTunes, DVD, and On Demand.

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