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Workers Can ‘Don and Doff’ Off the Clock, Says Court

9:18 pm in Uncategorized by Michelle Chen

(Bill Jacobus / Flickr / Creative Commons)

Originally published at In These Times

For workers in dangerous industries, safety should be non-negotiable. But the Supreme Court may have just given employers a little more leeway to put critical protections for workers on the table when bargaining over labor contracts.

In a unanimous decision issued last month in Sandifer v. United States Steel Corporation, the Supreme Court ruled against a group of steelworkers who argued that they should be compensated for the time they spend suiting up before and after their workdays, or “donning and doffing” protective gear including hard hats and safety glasses. Workers at U.S. Steel’s Gary Works in Indiana had sought compensation for what they believed were unpaid overtime wages, earned during their time spent changing into and out of their work clothes, which they argued was not properly clocked.

But the justices ultimately ruled that the steel company’s labor contract did not require the company to count the “donning and doffing” of workers’ clothes as paid overtime labor under the Fair Labor Standards Act (FLSA), meaning that the workers will lose their claim to back pay for the time spent putting on and taking off their gear.

The Sandifer ruling is limited from a legal standpoint, as it applies only to section 203(o), an obscure provision of the FLSA governing wage negotiations in collectively-bargained union contracts. According to an analysis in legal news outlet SCOTUS Blog, section 203(o), a 1949 amendment to the FLSA, “allows collective-bargaining agreements to exclude time spent ‘changing clothes’ from the work time subject to the statute.”  Read the rest of this entry →

The Supervisor From Hell Gets a Pass From SCOTUS

10:01 pm in Uncategorized by Michelle Chen

Originally posted at In These Times

Wikimedia Commons

The petty tyranny of middle management is practically a modern workplace institution. We’ve all experienced—or heard stories of—the despised supervisor who makes every workday miserable with verbal jabs and insults, sexual harassment, racial epithets or outright discrimination. And if that describes your workplace, your life may get just a little more nightmarish, since the Supreme Court has made it harder to wage a civil rights challenge against the supervisor from hell.

While the media has focused on the court’s big decisions this week on voting rights and marriage equality, the court also issued a major 5-4 decision on Monday limiting the scope of Title VII of the Civil Rights Act. The court ruled that when a supervisor engages in discriminatory harassment, the employer can be held strictly legally liable only if the supervisor working under the employer has authority over “tangible” employment decisions, namely the power to “hire, fire, demote, promote, transfer, or discipline.” The decision could sharply limit employer liability for supervisor harassment in many cases.

The theoretical distinction between employer and supervisor didn’t mean much to Maetta Vance, a black catering worker at Ball State University who complained to the U.S. Equal Employment Opportunity Commission (EEOC) about her white supervisor’s alleged harassment and threats against her. According to the allegations, Vance’s co-worker “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” The day-to-day experience of bias was what drove Vance’s civil rights claim. The case illustrates how, even without hiring or firing power, a higher-up’s power to shape the social environment of a workplace can be abused, especially when abetted by institutionalized racism and socially ingrained inequality.

A direct supervisor has other means of control that fall short of hiring-or-firing-power—for instance, the ability to monitor employees, assess them or assign daily duties. The potential to abuse such powers was made evident in one of the cases cited in the decisionRhodes v. Illinois Department of Transportation.

Donna Rhodes, a highway maintenance worker, complained that two of her more senior male coworkers subjected her to a discriminatory work environment through various forms of harassment. In addition to complaints of being barraged with “sex-based invectives” and finding a pornographic image taped to her locker, Rhodes alleged that her harasser “forced her to wash her truck in sub-zero temperatures, assigned her undesirable yard work instead of road crew work, and prohibited another employee from fixing the malfunctioning heating system in her truck.” Though her employer, the Department of Transportation, admitted “Rhodes had been subjected to a sex-based hostile work environment,” the department avoided liability under Title VII by arguing that technically, the harassers “were not Rhodes’s supervisors because they lacked authority to take tangible employment actions against her.”

In Vance, the Supreme Court majority similarly ruled that Title VII did not allow direct liability for the employer, Ball State, but reasoned that victims like Vance could still “prevail [in court] simply by showing that the employer was negligent in permitting the harassment to occur.” But this would still stymie efforts to hold a corporation directly accountable for the actions of lower-level direct supervisors.

Justice Ruth Bader Ginsburg argued in the dissenting opinion that that in limiting Title VII recourse, the majority “embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.” She notes that:

Read the rest of this entry →

The Formula for ‘Equal Opportunity’: Why Affirmative Action Isn’t Enough

4:34 am in Uncategorized by Michelle Chen

Originally posted at In These Times

Once again, affirmative action is on trial in the Supreme Court. The pending case, Fisher v. University of Texas at Austin, challenges U.T. Austin’s admissions policy, which aims to bring in more students of color by considering race among other factors. The case is driven by the misplaced racial anxieties provoked by affirmative action, but it might offer a platform for truly grappling with the nature of institutional racism and the oft-politicized, seldom-understood concept of “equal opportunity” in schools and workplaces.

The backlash against affirmative action—and more broadly against institutional efforts to desegregate schools and workplaces—has been accompanied by straw-man accusations of “reverse racism,” heard in debates about everything from President Obama to high school textbooks. Meanwhile, affirmative action’s detractors paper over the persistent inequities across our workplaces and classrooms.

A new book, Documenting Desegregation, sheds light on how racial inequity really works and why it’s so pernicious. The book traces the evolution of equal opportunity policies under the Civil Rights Act since its implementation in the mid-1960s. The authors, sociologists Kevin Stainback and Donald Tomaskovic-Devey, tell Working In These Times that effective enforcement of civil rights depends on both strong pro-integration policies and, more importantly, grassroots political movements that can hold institutions accountable. Read the rest of this entry →

The Right to Be Healthy: Supreme Court Weighs Sick Leave for State Workers

12:04 pm in Uncategorized by Michelle Chen

SCOTUS (image: debaird, flickr)

SCOTUS (image: debaird, flickr)

Cross-posted from In These Times.

One day in August 2007, Daniel Coleman, an administrator in the Maryland court system, decided he should stay home to recover from an illness, as his doctor had ordered. But the day after he requested time off, he suddenly had more to worry about than his health; he was unemployed, too.

In many industrialized countries around the world, taking time off from work to deal with a medical issue isn’t just a benefit; it’s considered an entitlement, as much as an eight-hour day. But in the world’s richest nation, a worker who claims that right has had to appeal to the highest court in the land.

So the Supreme Court will now weigh the rights of public employees to seek justice under the Family and Medical Leave Act (FMLA). The case, Coleman v. Maryland Court of Appeals, is based on Coleman’s lawsuit alleging that he was unfairly terminated following a dispute with his supervisor over leave time. Pitting Coleman, together with many civil rights advocates, against Maryland and 26 other states, the central question is whether a state can be held accountable under the law as a private employer would.

The FMLA basically allows workers to take 12 weeks of unpaid time off to deal with either a personal or family health concern. Although a worker at a private company can clearly sue for monetary damages if she is fired for taking time off for pregnancy or to care for a sick child–some courts have ruled differently for state workers’ rights. A lower court found that Maryland is shielded from legal liability in this case under the Eleventh Amendment sovereign immunity clause.

The issue before the Court isn’t just a question of workers’ medical rights when they fall seriously ill, but of the state’s obligation to to its employees. Gender matters, too; the FMLA, under the Equal Protection clause, was designed to counter employment discrimination based on women’s medical issues, like childbirth. (But the “self-care” provision in the Coleman case covers both men and women.)

A coalition of groups, including the National Partnership for Women & Families, unions, and the ACLU, argued in a friend-of-the-court brief: Read the rest of this entry →