The Top 10 Labor and Employment Trends of 2014
In lieu of presenting a hastily crafted web-video of a skit that would fall far short of the popularity of Justin Timberlake and Jimmy Fallon’s recent sensation “Camp Winnipesaukee”, we here at Lazear Mack have opted to take a slightly humorous look at the past year through the lens of decisions and trends in labor and employment law. There have been quite a few major decisions made by America’s courts, Supreme and otherwise, over the past few years, and those decisions have resulted in some disturbing trends. There are, however, also a few items of note that are hopeful, like the trend toward raising the minimum wage nationally. As 2014 comes to a close, let’s take a look at a few of these events and the impact they will have on active members of America’s workforce.
10. Wages, Wages, Wages
With Obama’s Dept. Of Labor taking a surprising stance for corporate interests in cases like Integrity Staffing Solutions, Inc. v. Busk, American workers can expect to be pushed even further when it comes to employers skirting the law (or in this case having it redefined in their favor) to avoid paying wages due. Warehouse workers with Integrity Staffing, a subcontractor of Amazon shipping, spent up to 25 minutes each day waiting in line to complete mandatory security screens after completing their shifts. The workers sought compensation for this endless waiting around while their employer had them searched to prevent “theft.” Although to attempt to leave without such a search would result in termination, SCOTUS opted to classify the activity as “unnecessary” to the performance of their duties, and thus non-compensable. Decisions like this are harder to make sense of than the sudden disappearance of Malaysian Airlines MH370.
9. My Boss is SO mean!!!!
Workplace Bullying continues to be a topic garnering a great deal of discussion in the field of labor and employment, but little legislation is yet on the books to prevent this behavior. We receive countless calls from beleaguered individuals who inform us they are experiencing debilitating and demoralizing harassment in the workplace, and simply cannot tolerate another day of the abuse, only to have to tell them that such behavior is perfectly legal. Bright note: California has recently passed the “Healthy Workplace Bill” which aims to curtail the behavior by including the topic in mandatory sexual harassment training. It’s a small step, but a step in the right direction. Employers argue that more laws breed lawsuits, failing to acknowledge that compliance with good law keeps everyone out of court. But the argument remains successful, in part because workplace harassment (of the non-protected class variety) remains extremely hard to quantify and thus, to legislate. The Healthy Workplace Initiative would have it defined as consistent behavior that leaves the victim so affected he or she is made physically ill, and has experienced a significant decline in job performance. If you currently believe you suffer from workplace bullying, check out Workplace Bullying definitions here, and consider writing your representatives in Congress and the Senate, to get something on the books. Or get a new job.
8. Pay your Strippers!
Class actions continue, despite big money efforts to shut them down. The public must understand that much as labor unions give us a collective voice in the workplace, class actions give a bully pulpit to the individual voice of a wronged non-union employee. These actions allow an amplification of that voice to a level where Corporate America is forced to listen. One of the most “entertaining” groups of class actions to follow in the past few years have been those involving strip-club workers. In Zuri-Kinshasa v. Sapphire, semi-nude dancers at the Sapphire Club in Las Vegas were found to be employees. These women had been working solely for tips (although some earned as much as $100,000 per year on tips alone), The dancers were forced to pay fees to the club owners for the privilege of working in certain slots within their clubs. A victory for unpaid labor, the biggest headache here will be calculating the back taxes and FICA payments that were never made for these ladies throughout the course of employment. Food for thought: next time you slip a fiver into a G-string, better mark a portion of it for “Social Security.”
7. An Apple a Day?
Teacher tenure, long sacrosanct in California and nationwide, was challenged in Vergara v. California. This resulted in a ruling that held teacher tenure to be unconstitutional as it now stands. Teachers Unions will appeal the decision, but it remains to be seen how the changing sentiment towards those who are, arguably, America’s most important workers will ultimately shake out. Alarm bells should go off any time wealthy individuals take an issue to court for political reasons. They aren’t in it to make things “better for the children,” only to minimize the costs incurred in sending their own children to private schools. There are those who wish to destroy our public education system in favor of vouchers and privatization. Such vouchers may lead to an even larger gap between rich and poor in terms of access to available resources for the enrichment of the children of this country, regardless of socio-economic status. One can’t help but wonder if the doors to higher education, or any education at all, will soon be forever closed to the disenfranchised poor. If only the children of the very wealthy are provided an education, it does not bode well for America’s middle-class dream. We will need smart, educated young people from all backgrounds if we are to move this country well into the new millennium successfully.
6. Corporate Welfare “Queens”
Billionaire corporate executives continue to profit off the backs of America’s struggling low-wage earners. When McDonald’s “McResource” hotline was outed as advocating its workers supplement their paltry wages with food stamps and public assistance, the spotlight of public opinion burned bright in illuminating the practices of large corporate entities taking advantage of their workers. It didn’t help that McDonald’s had also published a helpful “budget“ outlining the steps for managing on subsistence wages, particularly when the budget included line items like six hundred dollars for rent and sixty dollars for heating. If we could all make up a number for what we should pay to survive, wouldn’t that be swell? Unfortunately, that isn’t anyone’s reality, so the battle for fair wages continues nationwide, with victories here and there. Here in California the minimum wage was raised to $9 per hour last July, and will go up to $10 per hour in 2016.
5. Heroes & Villains
Edward Snowden is perhaps America’s most famous whistle-blower. There are those who would vilify him, and those who would anoint him saint. The reality may lie somewhere in between, but one thing is clear: he was a man driven by his own conscience. People who finds themselves in the position of running across something in the workplace they know isn’t quite right — or worse, downright unlawful – struggle with the duty to report it, balanced against the worry of consequence. It is good to know, then, that whistle blowers are currently protected here in California under both federal and state law. If you are retaliated against, you may have recourse in the judicial system. As of January 2014, whistle blowers in California have the additional protection against retaliation based on conversations or communications held with in-house staff in positions of power to affect the necessary or perceived changes. So if your conscience is bothering you, do the right thing. In the words of a favorite film icon: “Just put your lips together and blow…”
4. Tickets to Stardom not accepted here
One of the more hopeful trends is toward paying interns for actual work performed. With the Black Swan decision coming down in July 2013, businesses are taking another look at the risks inherent in “hiring” young people for slave labor. Relying on the Department of Labor’s Six Factor Test to make his decision, Judge Pauley essentially said that companies can’t profit from free labor. Despite many of the interns’ desire to take these jobs, on the promise of the career doors they may open, Judge Pauley made it clear to employers like Fox Searchlight that dangling the promise of a shiny career or the chance to hang out with Kim Kardashian, does not equate to compensation. After all, you can’t pay the rent with 100,000 twitter followers.
3. Funny Like a Heart Attack
In the past decade the EEOC has seen a disturbing upwards trend of incidents of racial harassment in the workplace. Reports of hangman’s nooses, racial slurs and bigoted graffiti abound. These acts, many of which rise to the level of hate crimes, are decidedly on the rise. The statistics are overwhelming, and the perpetrators who have been identified claim almost universally that “it was just a joke.” The EEOC is having difficulty keeping up with the number of cases filed. It’s spreading faster than the Ebola virus, and with the continued rants from extremists in the Far Right against every form of “other” getting so much airplay, it is not likely to abate any time soon.
2. I Don’t Need No Stinking Unions!
In June of this year, the Supreme Court issued a narrow decision that ran along party lines, involving a case in which public health care workers fought to be relieved of mandatory union dues because they didn’t support unions. The home-care workers in Harris v. Quinn were family members tending to individuals with disabilities, but who were licensed and regulated through the federal-state Medicaid program, making them part of the Service Employees International Union. They argued they should not have to pay dues for the state’s contract with the SEIU, even though the union is required to represent them and they benefit from its services. The workers were successful, as in a departure from settled precedent on the issue, the Court found that compelling them to pay into a union fund was unconstitutional under the Fourth Amendment. The battle to erode the strength of an individual’s right to collective bargaining is a top priority for business, as they continue in a concerted effort to squelch the voice of America’s workers to fight back against low wages and unlawful working conditions. Despite the desperate need for a collective voice, anti-union sentiment remains high, perhaps as a direct result of the well-funded efforts of big business. The public seems inclined to allow the erosion to continue, that is, until it hits home, and their wages begin to resemble the paycheck of a person living in say, Cuba, whose take home pay averages $20 per month. Careful what you wish for, people.
1. Take me to Church
Cries from the right of “it’s against my religion” apparently were heard by SCOTUS to the right, (with SCOTUS to the left dissenting) in the Burwell v Hobby Lobby decision. Despite constitutional prohibitions to the contrary, as well as common sense and legislation that has long held that one cannot be allowed the privileges of conducting a business while at the same time imposing strict adherence to your religion on those of your customers and employees who do not share your beliefs, religious infringement to the rights of individuals in the workplace is on the upswing. This ruling may be the worst of the bunch, casting a direct and definitive pall on the rights of others whose faiths differ from the fundamentalist Christian. This decision may result in a further erosion of issues like reproductive choice, gay rights, and those involved in Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. In that case, a church leader refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. His refusal to testify was upheld by a Utah Judge citing Hobby Lobby. Justice Ginsburg, in her Hobby Lobby dissent, somewhat prophetically raised the issue of a lack of guidance for the lower courts when faced with claims from employers alleging religiously grounded objections to a variety of issues, specifically noting a myriad of common medications which could be found objectionable on religious grounds by Muslims, Scientologists, Jews and others. And Christian Scientists don’t believe in medical intervention at all.
Left as it is, the decision could result in pretty much any law being averted by segments of the population on religious objection grounds, resulting in chaos. All for a quick dig at Obamacare by an overly politicized Supreme Court. It would seem the Constitution’s prohibition of mingling Church and State is on shakier ground than Chris Rock’s marriage, except of course, when the tax man comes knocking.
From the standpoint of employee-side employment law, it’s important to be vigilant. Pay attention to these changes and take action when you can. With the powerful voice of corporate money resonating in government, the businesses it represents will increasingly look for ways to cut costs and increase profits, and our current Supreme Court is not looking to do American workers any favors by upholding the few protections that have been put in place to protect them for decades. Labor costs are among the highest expense in any business, which means they’ll be looking for ways to curtail those expenses. Which, in turn, means less take home pay for America’s workers. So if you feel you have been wronged by your employer, call Lazear Mack, and let us help you find out where you stand. Before they change the law, again.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117