2013 ← CELA VOICE

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

Dec

2013

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

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

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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Let’s Pass the FAMILY Act: American workers deserve paid family and medical leave 1

Dec

2013

By Ramit Mizrahi

Today, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) introduced the Family and Medical Insurance Leave Act (“FAMILY Act”). This bill would provide workers throughout the United States with up to 12 weeks of paid leave at up to 66% of their earned wages, similar to (but more generous than) California’s Paid Family Leave Program.

As both an employment lawyer (with a special interest in leave laws) who represents many working parents and as a mother myself, I can say from experience that California’s Paid Family Leave Program has had a tremendous impact on working parents, many of whom struggle to balance work and family.

The first three months of being a new parent were the hardest, most trying times of my life. As a litigator, I used to think that going to trial was physically demanding–with four hours of sleep a night for weeks on end–but, really, that’s nothing compared to what it takes to care for a newborn when you’re already worn down by pregnancy and childbirth!

My husband and I both took off as much time as we could. I received 16 weeks of leave paid through the State of California’s Employment Development Department (EDD), the first ten as pregnancy disability leave and the next six as paid family leave for baby bonding. My husband took 12 weeks of baby bonding leave, which was job protected under the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA). Unfortunately, his was unpaid because he was a state employee and most state employees are ineligible for paid family leave through EDD.

As new parents, we were incredibly grateful to have this time with our baby. Even before my husband and I got married, we agreed that we would both take the full amount of time that we could, and that we would be equal parents. Both of us are committed to gender equality and know that it cannot be achieved unless dads step up and do their fair share at home. But while equal parenting was something we were philosophically committed to, we soon discovered that spending time with our baby was a labor of love and a privilege, not an obligation.

I simply cannot imagine going back to work full time six or eight or even twelve weeks after my baby was born. But that is what many moms do. And most moms don’t have the support of a partner who can take off even a month, let alone 12 weeks. Research shows that one in four American mothers returns to work within two months of giving birth, and 41% within three months (compare this to only 7% of mothers in the U.K.). And while 85% of new dads take parental leave, the vast majority take only a week or two.

Why is this the case? In short: because most Americans simply cannot afford to take more time off. According to a 2012 Department of Labor (DOL) survey, only about 40% of employees nationally have access to fully paid FMLA leave for durations of longer than 10 days. A mere 22% of worksites offer any paid maternity leave, while only 9% offer paid paternity leave. It is estimated that around three quarters of Americans live from paycheck-to-paycheck, and 68% of Americans would face difficulties if their paychecks were delayed by even a week.

It is no surprise, then, that the 2012 DOL survey found that nearly half of workers who took leave (49.6%) cut it short because they could not afford more time off. Among those who reported that they needed leave but did not take it, 46% stated that inability to afford leave was the reason they did not take it. This applies not just to baby-bonding leave or leave to care for a sick relative, but also leave that workers need to take for their own serious medical conditions.

What’s the solution? Paid family and medical leave for all American workers. California’s Paid Family Leave (PFL) Program serves as a wonderful example. Since 2004, this program has offered paid family leave to all workers who pay into the state disability insurance program. It has proven to be wildly successful. According to research published in the report Leaves That Pay: Employer and Worker Experiences with Paid Family Leave in California (Eileen Appelbaum and Ruth Milkman, 2011):

91% of those who used PFL stated that it had a positive effect on their ability to care for a new baby, foster child, or adopted child.
The median duration of bonding leave by fathers using PFL was more than double that of those who did not use it, four weeks vs. two weeks by men in higher-paying jobs (those that paid over $20 an hour and had employer-paid health benefits) and eight weeks vs. three weeks by men in lower-paying jobs (this statistic being particularly exciting).
PFL doubled the median duration of breastfeeding by new mothers who used it, from five to eleven weeks by mothers in higher-paying jobs and five to nine weeks by mothers in lower-paying jobs.

We can help bring these benefits to workers, babies, families, and employers throughout the country by passing the FAMILY Act. If passed, the FAMILY Act will provide workers with paid leave that will cover time off to care for their own serious health condition; the serious health condition of a child, parent, spouse, or domestic partner; the birth or adoption of a child; and/or certain military-related care and leave. The FAMILY Act would cover all workers, regardless of the size of their employer or the duration of their employment, and would be funded by payroll contributions that are only 0.2% each by employers and employee (a mere 2 cents per ten dollars earned!).

The Chamber of Commerce and other conservative groups will undoubtedly label this bill a “job killer” and fight against it (as they did with the FMLA and California’s PFL program). But we need only look at the tremendous success of California’s Paid Family Leave program, and the change in attitude by the business community to support the program just a few years after its implementation. According to the Leaves That Pay report, the vast majority of employers surveyed about the impact of the PFL program responded that it had either a “positive effect” or “no noticeable effect” on business productivity (89%), profitability/performance (91%), turnover (96%), and employee morale (99%). We can expect the same from the FAMILY Act.

The FAMILY Act will make it possible for more workers to make ends meet when they take much-needed time off to care for their own health and that of their loved ones. Society as a whole stands to benefit.

Consider contacting your Senators and Representative to voice your support for the FAMILY Act! By providing paid family and medical leave to all workers, we can ensure that people do not have to choose between making ends meet and caring for themselves, their children, and their sick relatives.

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

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Background checks: It’s not a “good thing” 3

Dec

2013

By Christian Schreiber

Consider the following hypothetical. You own a restaurant and you’re looking for an assistant to the head chef. The applicant needs to be able to cook, yes. But the position also requires administrative skills – ordering, inventory, relationships with vendors and staff. Creativity with the menu would be a plus. A woman comes with lots of relevant experience. You notice she has a six-month interruption in her resume in late 2004, early 2005.

Years ago, an interview might have sufficed; perhaps you would have called her references, or tried her out on a lunch shift. Today, in addition to the tryout and the references, you ask her to authorize a background check. In the meantime, she wows you on the lunch shift. Her plates look great. She cleverly rearranges the pans between orders. Then you get back her background check: she was convicted in federal court of conspiracy, obstruction of an agency proceeding, and making false statements to federal investigators. Does she get the job?

While the dark potential of our information age remains thankfully unrealized, the workplace remains a frontier of personal data collection and snooping. The ACLU claims that “it receives more complaints about privacy in the workplace than about any other issue.”

For workers, this unquenchable thirst for more information often first presents itself under the auspices of “background checks” (called “consumer reports”) required by employers. Where background checks were once the province of private investigators and reserved for high-level executives, now even low-wage workers are asked to authorize employers (and potential employers) to investigate their “character, general reputation, personal characteristics, or mode of living.” The trend is dangerous and often serves as the pretext for discrimination that would otherwise be prohibited under State and federal anti-discrimination law.

One of the most popular myths is that employers who screen candidates for credit histories and criminal records can reduce their potential liability from “bad hires.” Some courts have even adopted the rhetoric that background checks embrace a “common sense” approach because they help employers “better evaluate the trustworthiness, reliability, and effectiveness of prospective employees.” Yet, while other “common sense” claims hold up based on evidence of their truth, in this arena, employers have never even been asked for any proof that credit and criminal background checks increase retention rates, worker productivity, or diminish liability for negligent hiring or supervision.

In fact, consumer reports are notoriously flawed. The Federal Trade Commission and its successor, the Consumer Financial Protection Bureau, have claimed there may be as many as 42 million Americans with errors on their credit reports. But this is only part of the problem. Despite propaganda from the industry, race and gender result “substantial differences in credit scores across racial groups…with blacks and Hispanic whites having notably lower credit scores than other racial groups. These racial differences persist, even after controlling for other demographic characteristics such as age, marital status, and an estimate of income.” Though the law is still evolving in this area, denying employment on the basis of a bad credit history, therefore, may be tantamount to denying employment on the basis of race.

For workers with criminal histories, background checks present a more obvious and intractable problem. As a practical matter, criminal background checks are often harmful beyond the criminal conviction history they may include.

Like credit histories, they are frequently incorrect—sometimes the reports mix up identities (are you the same “Michael Miller”?), omit essential information about the offense or the disposition, or misstate charge levels or convictions. By the time such errors are challenged or corrected (companies have up to 30 days), employers have already moved on to the next applicant. This can also involve purely practical considerations: employers may understandably have difficulty sifting through charging codes, references to statutes, or interpreting dismissals and dispositions. Is it worth understanding a complicated report when a stack of “simple reports” offers a large enough applicant pool?

Or consider an individual who has had her record “expunged,” a process whereby the individual withdraws a guilty plea and the court dismisses the charges. Consumer reporting agencies often unlawfully report both the conviction and the dismissal, which they then claim is “factually accurate.” One can fairly ask what purpose the expungement serves if it fails to shield the conviction from later disclosure.

As the government grows more opaque, criminal records have become more public. The increase in computerized public records has made background checks easier and cheaper to obtain. What once required a trip to the courthouse is now accomplished by a few seconds at the keyboard. Consumer reporting agencies use sophisticated databases to package, market and sell criminal record information and credit histories to anyone with curiosity and a credit card.

This isn’t to suggest that childcare providers shouldn’t have access to criminal records of convicted child abusers, or that employers should not be able to discuss resume gaps with applicants and evaluate a potential employee’s record on a case-by-case basis.

Ultimately, given the over-representation of African Americans and Latinos in the criminal justice system, using criminal background histories is itself a race-conscious undertaking. This alone should give employers pause. Blind reliance on background checks of dubious reliability used to prescreen applicants only encourages discrimination. More importantly, it denies willing and capable workers, including ex-offenders, the opportunity to make an honest living.

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

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A reason for gratitude: We can care for loved ones when they need us most 1

Nov

2013

By Ramit Mizrahi

Thanksgiving has always been my favorite holiday. While it’s true that all year I look forward to eating turkey, cranberry sauce, and pumpkin pie, I love most what the holiday stands for. It is a day of gratitude, shared by Americans of all faiths and persuasions, that we set aside to spend with our families. As we reunite with our loved ones, we focus on what really matters and appreciate all that we have. The holiday has special significance for me as a plaintiff-side employment lawyer. One of my primary focuses is on family leave, and I spend a lot of time thinking and writing about how we can encourage and protect caregiving by workers, male and female. After all, what’s more important than family? So this year I am extra thankful: our paid family leave program is being expanded to allow workers to care for more family members.

Workers today face significant barriers when trying to take family leave, particularly those who are already struggling to make ends meet. Around three quarters of Americans live from paycheck-to-paycheck, with little in the way of savings, and 68% of Americans would find it difficult if their paychecks were delayed by even a week. It is no surprise, then, that a 2012 Department of Labor survey found that of those who reported that they needed family and medical leave but did not take it, 46% stated that inability to afford leave was the reason they did not take it. Of those who did take leave, nearly half cut their leave short because they could not afford more time off. Paid family leave is therefore critical as a safety net for workers to take the time they need to bond with their babies and to care for their relatives.

Since 2004, California has offered a Paid Family Leave (PFL) program that provides up to six weeks of paid benefits for workers to take time off to bond with a new child or care for seriously ill family members. It is fully funded by employees, and all employees who pay into the State Disability Insurance Fund are covered. However, until recently, its scope was limited to leave to care for a parent, child, spouse, or domestic partner, or to bond with a new child.

Earlier this year, Governor Brown signed SB 770 (Jackson) to expand PFL coverage to employees who take leave to care for seriously ill grandchildren, grandparents, siblings, or parents-in-law. By expanding PFL’s scope, we take into account changing demographics and allow more workers to provide care for family members in need. According to research cited by State Senator Hannah-Beth Jackson, author of SB 770, California has the second-highest percentage of multi-generational households in the country, and the EDD rejected about 10% of PFL claims because the employee sought leave to care for a family member not previously covered.

We as a society only stand to gain from family members being able to provide each other with quality care. Research has shown that the effect on workers and their families has been overwhelmingly positive. For example, with respect to new parents, research found that 91% of those who used PFL said it had a positive effect on their ability to care for their new child, that fathers who used PFL took a leave twice as long as men who didn’t use PFL, and that PFL doubles the duration of breastfeeding for new moms who used it. Employers, too, have reason to celebrate the expansion of PFL as the vast majority of surveyed employers responded that PFL had either a “positive effect” or “no noticeable effect” on business productivity (89%), profitability/performance (91%), turnover (96%), and employee morale (99%).

For next year, let’s aspire to expand paid family leave further, to cover more working Americans inside and outside of California. Within the next few weeks, Senator Kirsten Gillibrand (NY) and Representative Rosa DeLauro (CT) will introduce the Family and Medical Insurance Leave Act (“FAMILY Act”), which would provide workers with up to 12 weeks of paid family leave at up to 66% of their earned wages. Within California, we can also help more workers take family leave by expanding PFL to cover public employees and by giving job protection to those who take PFL. By strengthening our paid family leave programs, the ability to take time to care for family members and bond with children will be within reach for so many more workers throughout the country.

This Thanksgiving, celebrate your time with family. Be grateful for the love and health you all have, and take comfort that if they need you, they can count on you to be there for them.

About Ramit Mizrahi

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Giving thanks: A luxury that Wal-Mart workers can’t afford 3

Nov

2013

A Wal-Mart food drive... for Wal-Mart workers!

By Ramit Mizrahi and Sharon Vinick

This photo has been making the rounds on the internet, sparking both criticism and ridicule. It shows bins at a Canton, Ohio Wal-Mart put out by management with a sign asking: “Please donate food items here so Associates in need can enjoy Thanksgiving Dinner.” The photo went viral for a simple reason: it captures perfectly the fact that Wal-Mart associates earn so little that many will struggle to put dinner on their table this Thanksgiving — and management knows it!

Most of Wal-Mart’s hourly employees make less than $25,000 per year. This statistic makes sense since Wal-Mart typically pays entry level employees $8.00 per hour, which is just above minimum wage. Even after six years, an individual employed by Wal-Mart can only expect to be paid $10.60 per hour.

Given the low wages paid by Wal-Mart, it is not too surprising that many of its employees have to turn to state and federal aid programs in order to make ends meet. According to a report by Congressional Democrats released in June 2013 (discussed in this Mother Jones article), many Wal-Mart employees receive government aid, which costs taxpayers between $900,000 and $1.75 million per store, per year. Taxpayers in California, alone, are spending $86 million each year to provide healthcare and other public assistance to the state’s 44,000 Wal-Mart employees, at a cost of about $2,000 per worker.

Even Wal-Mart seems to recognize that its employees can’t live on the wages that the company pays and must rely on public assistance (and charity). Back in 2005, the New York Times reported that Wal-Mart’s executive vice president for benefits sent the board of directors an internal memo stating that “Wal-Mart has a significant percentage of associates and their children on public assistance.” But Wal-Mart has taken an unapologetic stance. With respect to the food drive pictured above, Wal-Mart representatives have said that it is proof of its efforts to take care of its employees!

For many years, Wal-Mart’s treatment of its employees has been the focus of activism, employee action, and litigation. This year, protests will be held on Black Friday at over 1,500 Wal-Mart stores.

Why has so much attention been focused on a single corporation? Perhaps it is because Wal-Mart is larger than Home Deport, Kroger, Target, Sears, Costco and K-Mart, combined? Perhaps it is because of the low-wages that workers earn while Wal-Mart’s CEO makes more in an hour than a full-time worker makes in an entire year? Whatever the reasons, Wal-Mart, as the nation’s largest employer, has become a symbol of the problems plaguing workers who work full time, yet don’t make enough money to make ends meet.

In the coming days, as Americans prepare for — and recover from — their Thanksgiving feasts, we should not only give thanks for what our families have, but make a commitment to helping other families who have far less. Real help requires more than just a few spare canned goods thrown into a bin. It requires that we address the reasons that our nation’s workers are in need. We should applaud Governor Jerry Brown for signing into law AB 10, a bill that will increase the minimum wage in California to increase the minimum wage to $10 per hour in 2016. And, we should lobby Congress to pass the Fair Minimum Wage Act of 2013, which would increase the federal minimum wage for all workers, including those at Wal-Mart, to $10.10 by 2015. Such legislation could help in ensuring that all workers can afford a Thanksgiving feast, without relying upon the kindness of their co-workers.

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Disclosure: Co-author and attorney Ramit Mizrahi worked on the Dukes v. Wal-Mart Stores, Inc. case from late 2004 to early 2006.

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Thinking “outside the box” means “banning the box”

Nov

2013

By Christian Schreiber

Last month the U.S. Supreme Court again refused a request by Governor Jerry Brown to stay a Ninth Circuit decision ordering the release of 9,600 inmates by the end of the year.

In spite of the decision, no reasonable person believes the streets will be teeming with violent criminals on New Year’s Day. What is certain, however, is that the ranks of California’s unemployed will swell with those former prisoners, as those released will join thousands of other “ex-cons” unable to find work because of their past criminal convictions. While news of sluggish job growth and lingering unemployment cycles through the front pages every few weeks, scant attention is paid to the legal obstacles placed in the path of thousands of would-be workers who have been convicted of a crime.

Momentum has been building to address at least one of those obstacles – the dreaded “paper screen” intended to ferret out applicants with criminal records. Governor Brown’s signature on Assembly Bill 218 placed California among a growing list of jurisdictions that are “Banning the Box.”

Ban-the-Box initiatives were originally pushed by formerly-incarcerated people. They believed that by eliminating the kind of “check the box”-type question — “Have you been ever been convicted…” — from employment applications, they might be given a fair opportunity to prove their worthiness for the job. Now employers, including most recently Target, are seeing the wisdom of the approach.

Help for former prisoners re-entering the workforce is long overdue. The United States leads the world in incarceration rates, and California ranks at or near the top of every list measuring the number of individuals in federal or state prison, local jails or under supervised release. According to the Department of Justice, Bureau of Justice Statistics, incarceration rates have fallen slightly the last two years, meaning more former prisoners are re-entering the work force each year.

Ban-the-box legislation is just the first step, but it’s an important one. In the absence of legal protections, what former prisoners face can barely be distinguished from Jim Crow. Individuals with past criminal convictions face discrimination that is not only common, it’s effectively encouraged. No group continues to be discriminated against so openly, with base racial prejudices endorsed at the highest levels. Supreme Court Justice Antonin Scalia no doubt speaks, albeit in code, to these unconscious racial fears many people have about the release of any inmates—whom he describes as “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia’s myth of a super-criminal appears to have more in common with his taste in TV or literature than it is does in reality, where nearly a third of released prisoners are over 40. But he’s hardly alone.

Few constituencies are more marginalized than former prisoners. Our willingness to dehumanize former prisoners ignores the simple fact that the only difference between “them” and “us” is that they got caught while we got jobs, and get to keep them.

Stories of redemption are easy to find, though countless others we don’t hear about break the other way. It’s time we treated ex-offenders individually and on their own merits so that redemption can become the rule, and not the exception.

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

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I Heart Kozinski

Nov

2013

By Wendy Musell

It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski.

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics. I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light? It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects. He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement. In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial (learn what is the asbestos attorney strategy), such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country. The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each. Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas

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on February 7, 2014. Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain. An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal. Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products. Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public. People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell’s earlier blog post, Gaming the system: If you can’t beat em, change the rules.]

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

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Heralding USERRA — the unknown law that protects jobs at home while military members serve

Nov

2013

By Sarah Schlehr

I am proud to say that my younger brother is a Veteran of the Marine Reserves. He served two tours of active duty—both in Iraq. Being a Marine is part of his identity and something he will wear as a badge of honor through his life.

My brother signed up for the Marine Reserves shortly after 9/11. While I personally did not support our invasion of Iraq, I always supported our troops and personally witnessed the commitment and passion of my then 19 year old brother in wanting to protect our country’s freedoms.

At the time of his first call to duty, my brother was just 22. He worked a full-time job at a grocery store in the Midwest. Although I make my living representing employees in legal disputes with employers, his was my first experience with the ways employers, whether knowingly or through ignorance, violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Though his job paid just over the minimum wage, my brother was on management track and entitled to health benefits. That is, he was until he notified his employer that he had been called to active duty for service in Iraq.

Shortly before my brother left for Iraq, his manager called him into his office and had him sign a paper stating that he was being reduced to part-time hours, but that he would be eligible to return to full-time status if and when he returned. Unhappy with this demand, but also preoccupied with his impending departure to active military service and unfamiliar with his rights under USERRA, my brother signed the paper and left.

After sharing his frustration with others more knowledgeable about the law, he went back to the store, and asked to see the paper that he had signed. He then tore it in half. His stunned manager asked him if he was walking out of the job. My brother responded “No, I’ll be back in about a year,” and left for Iraq.

It is shameful that so many military service members are uninformed about their rights under USERRA, the federal law designed to protect their civilian jobs, and to ensure their re-employment after deployment. Ignorance of the law appears to be rampant. And despite efforts by both the Department of Labor and the Department of Defense to educate employers on their obligations under USERRA, complaints by service members are on the rise.

USERRA requires employers to provide service members time off to serve in the military and to restore them to their jobs promptly when they return from duty. Importantly, it also requires the employer to continue medical coverage for service members and their dependents through any employer-based health plan for up to 24 months and prohibits discrimination and retaliation against service members. In my brother’s case, the employer’s attempt to move him to a part-time position could have impacted his entitlement to coverage during his tour of duty.

It is impossible to determine the actual number of USERRA violations because there is no central collection point for reporting claims. And some service members, like my brother, may never formally complain. However, we do know that complaints filed with the Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, and through the Veterans in Employment and Training Service (VETS), an office within the Department of Labor rose between 2010 and 2011, the most recent years for which numbers are currently available.

The Defense Department’s ESGR attempts to informally resolve service members’ complaints through the use of volunteer ombudsman. During FY 2011, the most recent year for which numbers are available, the ESGR mediated 2,884 USERRA cases. Over 1500 of them involved problems with job reinstatement and reemployment. Although instructive, these numbers don’t tell the whole story since there is no requirement that employees complain to the ESGR nor are they required to participate in mediation. At the same time, the Department of Labor VETS program reviewed 1,548 new unique USERRA complaint cases, up 8% from the previous year.

These numbers do not tell the whole story. Many service members are unaware of their rights under USERRA. Even those who know about USERRA may be reluctant to pursue legal recourse. Those who do pursue their rights may utilize legal avenues outside of the ESGR and VETS.

Fortunately, my brother came home from Iraq safely and was able to return to his job. When he returned, he went back to the same store and manager and experienced no serious repercussions or retaliation. He still isn’t sure if his former employer was intentionally violating the law or just ignorant of its protections.

But not everyone is so lucky. Much more needs to be done to educate both employers and service members of their employment rights, to track violations, to punish violators, and to provide redress. Surely, that’s the least we can do to repay the sacrifices made by the men and women protecting our country.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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