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Devastating consequences to working moms and infants when employers violate the law

Aug

2013

California law has the back of new and expectant mothers who need workplace accommodations during pregnancy or time and space to breastfeed after giving birth. By following the laws, employers protect the moms-to-be and babies. Unfortunately, when employers disregard their legal obligations, the consequences for women and their babies can be huge – premature delivery, back injuries, undernourished babies, even stress-related miscarriage.

A recent article in the Huffington Post exemplifies the suffering one employee experienced when Albertson’s failed to accommodate her most basic requests for accommodations: she delivered prematurely and her newborn died. In a recent blog post detailing this tragic case, the public interest law firm, Public Justice, calls for action at the federal level to extend the types of protections available under California law across the nation. Blogger and Public Justice staff attorney Claire Prestel touts the recommendations of an important recent report by the National Women’s Law Center and A Better Balance —

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Another recent blog post from Public Justice senior attorney Victoria Ni, The Facts of Life, describes the long struggle women have experienced to secure their right to breastfeed their babies while supporting their families by working. In California, the law was amended this year to ensure that discrimination based on sex specifically included breastfeeding. Despite this, many women continue to experience difficulties trying to pump breast milk during work hours. Unfortunately, even a day or two of interrupted pumping can have significant and ongoing effects on a mother’s ability to breastfeed their newborn. While certainly not as extreme as the death of a newborn, the inability to supply one’s child with breast milk can have serious long-term effects on the health of one’s baby.

Often the accommodations female employees need are as simple and obvious as not requiring a pregnant woman to lift heavy items or to allow a woman with gestational diabetes the ability to eat regular snacks during work so her blood sugar can remain stable. For women who wish to breastfeed, the accommodation is usually as straightforward as providing them with a private space (not a bathroom stall) and time to pump breast milk.

In view of how long and hard employees had to fight to establish these reasonable and simple laws, it should perhaps not come as a surprise that employers continue to fight long and hard to resist following them. But resistance to change does not justify the serious consequences to women and the long-term harms suffered by infants, all of which can be prevented in California through enforcement of the legal protections.

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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EEOC loses battle (but not war) on discriminatory background checks 2

Aug

2013

By Christian Schreiber

When it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job. Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks. According the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants. These views are being echoed in recent posts by John Nicasio on multiple news outlets. This has attracted much needed attention to an otherwise no so popular topic.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds. Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness. Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks. These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment. After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence. However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants. Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.) Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants. Advocates hope Freeman doesn’t signal that more bad news lies ahead.

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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Subsidizing our food supply on the backs of the working class

Aug

2013

By Afshin Mozaffari

The fast-food workers’ protests for higher wages last month triggered a national debate about workers’ compensation, price of food, and the role of the statutory minimum wage. Thousands of fast-food workers have been holding one-day strikes from New York to several Midwestern cities, demanding $15 an hour – more than twice the federal minimum wage.

The federal minimum wage rate has been in effect since 1938 and is part of the Fair Labor Standard Act (“FLSA”), which, among other things, also set the 40-hour workweek and overtime pay. Beginning at a rate of $0.25 in 1938, the minimum wage standard has been raised more than 20 times to reflect cost of living increases. The last time Congress visited this issue was as part of the Fair Minimum Wage Act of 2007, which amended FLSA to gradually raise the minimum wage from $5.15 per hour to its current rate of $7.25. Prior to that, the minimum wage rate had not been adjusted since 1997.

These numbers do not reflect the full story. Those making minimum wage have less buying power than their peers did in the mid-1950s. Although the federal minimum wage generally kept pace with increases in the cost of living, it began to fall behind during the 1980s. In fact, according to a recent report, the “effective minimum wage,” which is the local minimum wage rate adjusted for the cost of living, is actually $6.07 in Los Angeles and $6.27 in San Francisco. Based on the Department of Housing and Urban Development estimates of fair market rents for housing, even ignoring taxes, a minimum wage worker in Los Angeles must work 34.5 hours per week just to pay rent. Minimum wage workers in San Francisco need to work 33.75 hours to pay rent.

Based on the federal minimum wage standards, a full time worker earns approximately $13,920 per year. The poverty income threshold in the United States is just over $23,000 for a family of four. In other words, a minimum wage worker holding a full time job is guaranteed to live well below the poverty line, which itself has been kept artificially low.

Some argue that minimum wage positions are filled with teenagers, who need not concern themselves with such “real life” affairs as paying rent or providing for children. However, this position simply ignores the reality of minimum wage worker demographics today. The median age of fast-food workers is over 28, with many trying to support their families.

Many, if not most, minimum wage workers are compelled to work multiple jobs to make ends meet. Indeed, McDonald’s financial planning guidelines for its low-pay workforce anticipates a second, nearly full-time job as part of its “sample monthly budget” for its low wage employees. Meanwhile, the food prices, especially in the fast-food industry, remain fairly low and fast-food companies continue to post healthy profits. The McDonald’s Corporation, for instance, reported approximately $5.5 billion in profits in 2012. It paid its CEO $27.7 million in compensation during the same year. With the public benefiting from a relatively cheap food supply and the corporations enjoying profits equal to small countries’ gross domestic product, it is time to ask ourselves how long are we willing to allow minimum wage workers to subsidize our food supply by working more than 70 hours per week while struggling with poverty so that our food prices remain where they are and corporate profits continue to rise.

For more information on joining the fight to help raise the minimum wage, click here.

Is your favorite restaurant a sweatshop?

Aug

2013

By Kevin Kish

Last week, thousands of workers at fast-food restaurants across the U.S. walked out of work to protest low pay. Their actions brought rare media attention to the millions of people in this country who work full-time shifts – or more – without making enough money to meet basic life needs.

But paying more at a restaurant than you would for a fast-food meal is no guarantee that workers are earning enough to live on, or even that they are earning the legal minimum wage. The New York Times recently reported about one of my clients who was never paid overtime wages for 60-hour workweeks despite working at a Beverly Hills restaurant where a meal can cost more than $500. For one person.

In fact, in my experience representing hundreds of restaurant workers in claims for unpaid wages in Los Angeles, there is generally no relationship between the price of a restaurant and the way the workers there are treated, including whether they are paid all of the wages they earn. At fancy date-night spots and at neighborhood lunch counters alike, workers get paid the minimum, or not, depending on whether the owner cares about following the law. Many don’t. A nation-wide study from 2009 found that more than 23% of cooks, dishwashers, and food preparers were not paid minimum wage, and a whopping 70% of restaurant workers experienced overtime violations.

One reason for this is that employees often fear speaking out about unfair or illegal treatment, for good reason. In the Beverly Hills case, my client was fired on the spot when he asked to go home after working for 9 hours with a fever, and after more than five years of service at the restaurant.

Most people care about whether other people are treated fairly in the workplace. But in a global economy, where your shirt is made in Bangladesh and your phone is made in China, it can be difficult to feel you can make a difference.

Restaurants are a good place to start. 75% of Americans eat out at least once a week, and when we walk into a restaurant to eat, we also walk into a workplace where we can make a difference directly. A national restaurant-worker organization, Restaurant Opportunities Centers United, has published its second-annual Diner’s Guide to Ethical Eating (also available as a free mobile app) with information about labor practices at restaurants around the country.

You can find out, for example, whether your favorite spot offers employees paid sick days, so you know your meal wasn’t prepared by someone with a fever. If it doesn’t, ask the manager or owner about it. As consumers, we have insisted on healthier choices in restaurants, on calorie-counts and on fresh ingredients free of pesticides. More than 10 million Americans work in restaurants. We can also insist they get a fair shake.

About Kevin Kish

Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.

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Rape in the fields goes unpunished 1

Aug

2013

By Michael Marsh

Recent Congressional hearings have focused much-needed attention on the problem of sexual assault against women in the U.S. armed forces. San Diegans are demanding that their mayor resign because of sexual harassment allegations. But where is the public outrage against sexual harassment and assault suffered by women who work in our fields?

To be a female farmworker today is to face the sort of sexual harassment and assault that secretaries and other female office workers faced in the 1950s and ’60s. Supervisors create and maintain hostile work environments. Sexual banter, inappropriate touching, and hostility toward women are commonplace.

As an attorney for farmworkers, I am frustrated by how little progress we have made in resolving this problem. Years ago, one of my first clients was a farmworker who suffered six months of daily comments by her supervisor about her body. On numerous occasions, he attempted to coerce her into having sex with him by threatening to fire her or have her deported. She lived in constant fear. Finally, finding her alone at the edge of a field one evening, her supervisor raped her.

Ironically, the worker, whom I’ll call Guadalupe, did not come to my office to report the sexual assault. She came with a family law question. Did she have to list the “father’s” name on the birth certificate? The assault had resulted in a pregnancy. Not knowing any of this, I congratulated her on the pregnancy. Only then did she break down in tears and explain that her supervisor had raped her. When I asked her why she had not reported the rape to me earlier, she said she was embarrassed and, in any case, did not think there was anything that could be done about it.

Little has changed. According to one report, hundreds, if not thousands, of farmworker women have been compelled to have sex with their supervisors to get or keep jobs, and many others suffer a constant barrage of sexual comments, groping, and propositions for sex. Another survey found that 90 percent of farmworker women reported that sexual harassment is a major problem in the workplace. A 2012 report by Human Rights Watch states that in most instances the perpetrators of such harassment are supervisors, foremen, and farm labor contractors.

Last year, I settled the case of a farmworker who alleged she was raped by her supervisor in a truck at the side of a field at 5 a.m. before the rest of the crew had arrived. The worker, whom I’ll call Maria, had accepted a ride from him because the company van was full.

Farmworker women endure many difficulties to support their families, and threats by farmers to call immigration authorities on some complaining workers are implicit and explicit. The power imbalance is extreme. Workers understand that supervisors have absolute power to discipline and fire workers. And farmworker women often lack information and support to challenge bad behavior.

The root of the problem is that our society has dehumanized farmworkers. When city dwellers speed by farmworkers on the highways of California, they do not see people working upright, standing on two feet, eyes focused on the horizon. They see bundles packaged against the sun and wind, hunched over as if on all fours, with eyes focused toward the ground. In short, they see animals, not human beings.

Focus groups of California registered voters organized by the Rural Community Assistance Corporation indicate that citizens understand that living and working conditions for farmworkers are extremely substandard. But these same citizens justify the conditions, arguing that farmworkers chose their own lot or, conversely, that these conditions must be an improvement from conditions in Mexico. In any case, so many farmworkers are “illegals,” so what should they expect?

We need to change society’s view of farmworkers. Schoolchildren should learn about the contributions farmworkers make to our economy and society and the problems farmworkers face. An effective media campaign—funded by the agricultural industry and the government—should be launched that educates the public and humanizes farmworkers in the public eye. And while some news organizations—such as the Center for Investigative Reporting, Univision, and PBS/Frontline—have done commendable work on the sexual harassment of farmworker women, more needs to be reported.

Laws must also be enforced.

Protection requires speed, but, right now in California, the federal Equal Employment Opportunity Commission (EEOC) takes a year or more to assign an investigator to a case and another one to three years to complete an investigation. During those long waits for justice, witnesses disappear, especially in a migrant labor market, making difficult cases nearly impossible to prove. Harassers become emboldened.

California employers are required to train supervisors about sexual harassment every two years and to give all employees information about sexual harassment every year. But many agricultural employers fail to provide any meaningful training whatsoever. In Guadalupe’s case, her employer gave workers a sexual harassment information sheet that was so poorly translated into Spanish that it stated “if you report sexual harassment to your supervisor, you will be retaliated against.”

Maria reported her attacker to the local sheriff, but most women do not report the assaults to authorities. Even when they do, it can lead nowhere. Maria’s attacker was interviewed by deputies but never charged with a crime. The silver lining was that Maria’s victimization and her cooperation with law enforcement formed the basis for her successful application for a “U” visa, which is granted by U.S. Citizenship and Immigration Services to victims of certain violent crimes who collaborate with authorities to investigate or prosecute those crimes. As knowledge of “U” visas becomes more widespread among the farmworker community, I expect that more farmworker women will come forward to report these crimes.

Our office works closely with a rape crisis organization, medical personnel, and local law enforcement. But in many areas, rape crisis organizations are non-existent or underfunded. Lawyers win settlements for victims but do little to address the underlying causes of the problem. Rural law enforcement officers are not as empathetic to the complaints of assault victims as many of their urban counterparts. All this must change.

Farmworker women may not wear our country’s uniform or carry a weapon into battle, but the work they perform is just as important. They deserve equal protection against sexual harassment and assault.

This article originally appeared at www.zocalopublicsquare.org.

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

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Workplace flexibility is good for everyone

Jul

2013

By Elizabeth Kristen

David Chiu, President of the San Francisco Board of Supervisors, recently introduced innovative legislation to help working families.

Titled the Family Friendly Workplace Ordinance, the bill would allow employees to ask for modifications at work to better accommodate their family caregiving responsibilities without fear of retaliation or other negative job consequences. The bill was originally to be placed on the ballot but now will be regular legislation as it has garnered the support from San Francisco Mayor Ed Lee.

If enacted, the new law would provide employees at companies with 20 or more workers with the right to request modifications at work, such as a later start time or a predictable work schedule to assist with family caregiving, and requires that the employer engage in a conversation about the request. The employer is not required to grant the request if it has a good faith business reason, and if it does grant it, can later revoke it.

A recent caller to Legal Aid Society-Employment Law Center’s work and family helpline from San Francisco was trying to navigate care for her newborn when she returned to work – her baby was 2 months old. She tried to work with her employer so that one day a week she could leave earlier than she had in the past. She offered to stay later a different day to make it up, but her employer flatly refused and she felt crushed that they would not work with her so that she could manage childcare for her infant.

Unfortunately, her story is all too common. Workers who need more flexible work schedules (or more predictable work hours) to attend to caring for ill or elderly parents also would benefit from this law. Another helpline caller whose mother had been diagnosed with Alzheimers asked her employer to change her shift so she could arrange for her mother’s care. The employer refused, without even considering whether this was feasible for the company.

As Professor Catherine Albiston, professor of law and sociology at U.C. Berkeley, recently explained, without legal protections workers who ask for flexibility are stigmatized, passed over for promotions, paid less, or seen as less committed to the job. Because women have traditionally borne most of the responsibility for family caregiving tasks, the burden of such negative workplace consequences has fallen more heavily on women.

A study of a similar law in the UK found that businesses also benefitted from workplace flexibility. In fact, “70 percent of employers surveyed said flexibility helped recruit better workers and kept employees engaged and motivated.”

Supervisor Chiu noted that “The experience in other countries has been extremely positive. In Britain in the first year after this law passed, one million parents requested flexible working arrangements. Nearly all of these requests were granted with little opposition by employers.”

The legislation is an important first step toward making workplaces better for everyone with family or caregiving responsibilities. Some have also argued that the bill will help San Francisco stop the flight of families out of the city. San Francisco has the lowest percentage of children (13.5%) of any major city in the country and legislation like the Chiu ordinance may help keep families with children in San Francisco.

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work. Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid. Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco. In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow. She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

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Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace 2

Jul

2013

By Curt Surls

Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.” It is July 2013. After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.

Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant. Lou is an overweight, balding, married father of three grown daughters. Lou offers Mary an associate producer position, reporting directly to him. Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace. Edie demands that Mary be fired immediately. Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional. Lou fires Mary. He replaces her with Rhoda. In Iowa in 2013, Mary has no legal recourse.

This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive. Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms. In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.” Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).

The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.

Here is the official photo of the Justices of the Iowa Supreme Court. See if you can spot what they all have in common.

Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant. For ten years, she was an exemplary employee. She regarded her boss as a “father figure.” Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant. In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage. Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson. Ms. Nelson sued for gender discrimination. The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.

The Court’s original decision in late 2012 was greeted with outrage and ridicule. In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial. Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself. “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left). “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere. Of course it was “because of sex.” If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss. If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her. Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.

But back to Mary Richards. In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune. What if he re-hired Mary? Could Edie get her fired again in California? Not likely.

The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit. The Court relied heavily on 8^th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination. California state law takes a broader view of the impact of sexual favoritism on the workplace environment. Our Supreme Court has recognized that sexual favoritism is not merely a private matter. Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women. California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.

And besides. Why would Lou even listen to Edie? They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried. You can watch the wedding here.

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

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Farm work with a serving of chlorpyrifos-methyl

Jul

2013

By Michael Marsh

Several weeks ago, I argued in this blogspace that the best reason for consumers to buy organic vegetables is to protect farmworkers and their families from pesticides. A new report from Farmworker Justice highlights how pesticides are poisoning farmworkers and what can be done about it.

I have a farmworker client, Marcelo, who exemplifies the problems mentioned in the report. He applied pesticides, many of them quite toxic to humans. He was trained by his employer in the most perfunctory fashion. Marcelo was supposedly trained to handle, mix and apply ninety-six different pesticides, each with very different properties and requirements. The training lasted one hour. Or about thirty-seven seconds for each pesticide, some of which have tongue-twister names that would be difficult to pronounce in the allotted time, such as 1,3-dichloropropene, or chlorpyrifos-methyl.

Marcelo was told that he needed to change the filters in his respirator when he could smell or taste the pesticides he was applying. Only two problems with that. First, by the time a worker can smell or taste pesticides through a respirator, it is too late. The worker is already improperly exposed to toxins. And second, Marcelo’s employer never provided him with replacement filters. Instead, he was fired for complaining about the lack of filters and other pesticide violations.

While Marcelo’s employer paid dearly for its mistreatment of him, many more farmworkers are exposed and ignored. Fortunately, recent news coverage is bringing this problem to the attention of the public, and the Environmental Protection Agency is developing more stringent regulations that should offer greater protections to farmworkers and their families.

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

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Gaming the system: If you can’t beat ‘em, change the rules 2

Jul

2013

By Wendy Musell

A basic premise in our American justice system is that everyone should have to play by the same rule book, and the rules should not be rigged so that one side wins. These basic rules of fairness are being put to the test by the proposed changes to the federal rules of civil procedure.

The federal rules of civil procedure — just the name sounds boring and designed to put you to sleep. But while you’re dozing, there is a plan afoot — driven by attorneys representing employer interests — to change the rules in every federal courtroom across the country to limit access to evidence necessary to prove up violations of your civil rights. How? By drastically limiting discovery — the process by which civil litigants can get access to the other sides’ evidence, documents and witnesses.

Employment, civil rights and consumer cases, unlike contests between large business interests, are fights—where one side has more money, more time to kill, and often controls the evidence, documents and witnesses. Witnesses in employment civil rights cases are most often the supervisors who perpetrated the unlawful conduct, human resources who may not have addressed the complaints adequately and current employees who may fear that telling the truth will result in standing on the unemployment line.

To win an employment civil rights case, the employee-side lawyer

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needs to ask a lot of questions of multiple witnesses to find out who did what, who will admit to seeing the unlawful actions, and where the documents are located. It is also necessary to find out if different and changing reasons are given for the employment actions to show the jury that the employer’s actions were based on an unlawful reason, and not a legitimate non-discriminatory reason that the employer professes.

Take for example, a woman fired after she refuses the sexual overtures of her boss on the basis that her work was not competent. If there are only five depositions allowed, the victim of sexual harassment may not be able to get to the bottom of why she was fired, demonstrate her work was competent, or be able to demonstrate that she was fired because she would not give in to her boss and not based upon the quality of her work.

The employer can hide the ball until all five depositions are used up in a game of “gotcha.”After all, employees are often prohibited from taking emails and documents, no matter how important the document is to proving the employer violated the law. And they are shut out from their former employer’s computer system after they no longer work for the company, One of the only ways for a person whose civil rights were violated by their former employer to prove their case is by asking for the evidence about what happened, a process that is governed by the rules of civil procedure.

The proposed new rules slash in half the number of permissible depositions, limit the number of document requests, and limit how many written questions can be asked. These changes are akin to telling David, go ahead and fight Goliath, but we will tie one hand behind your back and only give you only half a slingshot.

The only way to ensure there is any place for employees to seek redress for violations of their civil rights , is to allow adequate access to evidence. Otherwise, we might as well be honest to American workers and tell them the rules have changed. And the number one rule is — you lose.

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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ENDA: Is there an end to LGBT employment discrimination? 1

Jul

2013

By Anne Richardson

At present, employers in 29 states are legally allowed to fire an employee for being lesbian, gay, or bisexual. In 33 states they can fire a transsexual employee based only on gender identity without fear of repercussion. At the same time, 37.7% of ‘out’ LGBT employees report being discriminated against at work, and 9% reported losing a job because of their orientation. Though federal laws forbid workplace discrimination based on race, religion, sex, age, national origin or disability, no such protections exist for LGBT workers nationwide.

The extent of discrimination against LGBT workers was chronicled in A Broken Bargain, a recent report from the Center for American Progress, Human Rights Campaign Fund and Movement Advancement Project. These organizations, along with many others are calling for Congress to pass the Employment Non-Discrimination Act of 2013 (ENDA – SB 815).

This week, the Senate Health, Education, Labor, and Pensions Committee passed ENDA out of committee. If it goes on to become law, ENDA will extend to gay, lesbian, bisexual and transgender employees the same workplace protections guaranteed to other groups. Specifically, it would forbid discrimination “because of such individual’s actual or perceived sexual orientation or gender identity.”

A story on the blog Policymic titled 5 People Who Were Fired for Being Gay, and the 29 States Where That is Still Legal, profiles a lesbian soccer coach in Tennessee, a management analyst with the Library of Congress, and others who have faced employment discrimination because of their LGBT status.

Many feel the time has come for Congress to pass ENDA, including groups like the Human Rights Campaign Fund that are calling for public action. Without ENDA, LGBT workers around the country will continue to endure workplace discrimination and be excluded from the promise of a free and fair workplace for all Americans.

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

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