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Wednesday, September 23, 2015

3 Blockbuster Supreme Court Cases that Could Spell Catastrophe for Workers and Consumers

September 21st, 2015 | Paul Bland

 Corporate America has been tireless in trying to sharply limit, or simply eliminate, all class action lawsuits. When corporations break the law by doing things such as not paying workers for time they work, paying women less than men, or by violating privacy rights in willful ways, Corporate America knows that workers and consumers can band together in a class action.

If that ability to organize is taken away, however, in a great many cases consumers and workers will not be able to fight illegal conduct at all.On too many occasions, corporations that don’t want to be hemmed in by consumer protection and civil rights laws have found a willing partner in battling those actions among the five conservative members of the U.S. Supreme Court. On several key occasions in recent years, the Court has invented new rules of federal law that have sharply limited when individuals can join together and enforce the law through class actions.

Things could get much worse, though. There are no less than three cases in the Court’s upcoming term that could be disastrous for consumers, workers and small businesses cheated by anti-competitive behavior that violates antitrust and other laws. In each of the three cases, the plaintiffs won in the trial court under laws that have been on the books for years and accepted by nearly all of the lower courts. In each case, Corporate America is asking the Supreme Court to invent a new federal law that would immunize them.

These are the three cases, and questions, the Court will tackle in the coming weeks.

Tyson v. Bouaphaekeo: Should Courts Ignore Statistical Evidence If It Proves a Corporation Broke the Law?

As part of their job, meat processing employees in an Iowa plant had to put on and take off certain protective clothes when they were working in an area using certain knives. Tyson Foods estimated it would take four minutes to do these tasks, and that’s all it paid them for. In fact, it takes a lot longer. That’s why a jury found that Tyson owed workers $5.8 million for underpaying its employees. (This is what we would call “wage theft.”)

One of the pieces of evidence the jury considered was a statistical sample of 744 observations of employees putting on and taking off the protective gear. That data clearly showed that it took far longer than the four minutes Tyson claimed. Tyson now says that using this statistical evidence was illegal, because it was a “trial by formula.” Tyson now says it should be able to have an individual trial for every single employee, and that using a sample of 744 observations is improper.

That’s a pretty staggering idea. Courts have allowed juries and judges to infer facts from statistical evidence for decades; the idea that no jury could consider statistical evidence without it being a supposedly illegal “trial by formula” is radical. Our military and intelligence services use statistical analyses in their national security strategies, and pharmaceutical and medical companies all rely upon statistical analyses of results and observations in their work, too. 

They do because it has been shown to be effective. Now, Tyson is arguing that when it comes to proving a corporation violated the law in a class action, courts should pretend that in that one context, statistical analyses of data is banned. This is pretty convenient for corporations engaged in wage theft, but it makes no sense at all as a matter of law.

Spokeo v. Robins: Should the Court Essentially Repeal Hundreds of Statutes that Let People Sue for Set Sums When a Company Breaks the Law?

Spokeo is a company that “scrapes” information from a variety of sources on the internet, and then sells it to people who want to find out about others. In this case, the plaintiff says Spokeo got a lot of facts wrong about him: his age, education, employment and marital status, and a number of other facts. Under the Fair Credit Reporting Act, if an agency that gathers information about people sells false information about someone; and willfully uses lousy procedures that are likely to make substantial mistakes, they have to pay a set amount (up to $1,000) to any consumer about whom they made a false statement. The consumer doesn’t have to prove they lost money or suffered physical injury because of the false statement. Congress just presumed that it would bad for consumers to have corporations lying about them and wanted to discourage corporations from willfully doing so.

This idea of “statutory damages” is a very old one in American law, and is included in literally hundreds of statutes. That’s because, if someone lies about you, how can you put a number on how much it hurt you? So rather than bar victims of this kind of illegal act from receiving anything, legislatures give them a flat dollar figure, as sort of rough justice.

Now, Corporate America is asking the Supreme Court to say that if an individual can’t prove in what it calls a “concrete way” just how much they were harmed because of a lie, that the Constitution says they were not injured at all. In an extremely clever but very ugly feat of focus group politics, corporate advocates call this a “no injury” case, and say that the hundreds of statutes that Congress passed creating statutory damages for hard-to-measure injuries are all unconstitutional.

This would be a sweet deal for corporations that willfully create procedures through which they report false things about consumers, and if Spokeo wins, it will suddenly become much easier for corporations to violate Americans’ privacy. If the Supreme Court does invent this new rule of law, it will essentially strike down hundreds of existing laws (talk about activism!) by doing so.

Campbell-Ewald v. Gomez: Does the Constitution Authorize Corporations to Bribe Named Class Representatives to Sell Out Everybody Else?

The basic idea of a class action is that one or more people are going to come forward on behalf of everyone in a group who’s been treated a certain way. The people who bring the case are called the “named class representatives,” and they have an obligation to protect the interests and stick up for everyone whom they’re representing. 

The idea is not that someone files a case and says “I’m suing for a group of people who were all cheated the same way, but if you pay me off, I’ll toss them all under the bus and just take some money for myself.”

But in Campbell-Ewald, that is exactly the argument the defendant is making. The corporation wants to pay off the named class representative by offering the exact amount of money he is owed under the law, and then argues that the Constitution magically requires that every other person who has a claim disappear.

First, this argument runs exactly counter to the core idea that the named class representative is supposed to adequately represent everyone else in the class. As a system, we want the people who come forward on behalf of a class to take their obligations to the rest of the class seriously. We want people who know that it’s not all about them, but that it’s about protecting the rights of a group.

Second, the defendant’s repulsive argument here encourages the worst kind of game playing. Are you a corporation who’s been caught red-handed, cheating a crowd of people? Well, under this theory, you can just pay off the people who step forward to bring a case one by one. You’llnever have to pay off anywhere near all of the people you cheated. (If there’s no class action, no one will ever be able to find them all, explain to them what happened, and get them to come forward). So, corporations just have to individually pay off the people who step forward. The laws won’t be enforced, and the corporation will get to keep nearly all the money it took. Is that justice? Maybe it’s considered justice in the board rooms of corporations that break the law and cheat people, but nowhere else.

So What Will Happen?

It’s really hard to know. There is no doubt that the U.S. Supreme Court has five justices who have a very strong deregulatory impulse; they seem to feel that we have way too many laws protecting consumers and workers, and they don’t mind reining them in. On the other hand, even the five pro-corporate justices on this Court sometimes fail to get a full majority to support very radical changes in the law. 

When the Court was asked to basically eliminate nearly all class actions in cases involving securities fraud a few years ago, that was a bridge too far for the majority. The betting here is that Corporate America has asked for too much in each of these cases: they want rulings that are so radical, so counter to what the law has been for years, that there won’t be five votes to let them get away with such behavior. But if I’m wrong, we’re in fora lot of trouble.

This Blog originally appeared on Public Justice and was reprinted by Daily Kos on September 21, 2015. Reprinted here with permission.

About the Author: Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy.

Illegally Fired for Exercising Your Rights at Work? You Should Be Able to Sue

September 19th, 2015 | Laura Clawson

 The new bill to strengthen penalties against employers who illegally fire workers for collective action that Sen. Patty Murray and Rep. Bobby Scott introduced in Congress on Wednesday would do more than just deter those illegal firings, argue the Century Foundation’s Richard Kahlenberg and Moshe Marvit: it would reframe union rights as civil rights.

The WAGE Act would give workers the same remedies as employees whose civil rights are violated: the ability not just to get their jobs and back pay, which is the rule now, but to win punitive damages, to engage in legal discovery that gives lawyers access to an employer’s internal files, and win attorneys’ fees when workers prevail. Employees also can get a preliminary injunction to get their jobs back right away.

By giving workers a fresh way to think about becoming part of a union – as a civil right, rather than just joining a special interest – the idea has a chance to re-awaken a conversation that has languished in American politics. The decimation of the American labor movement has been catastrophic for the middle class, keeping wages down and weakening the voice of middle-class citizens in the political process.

As Kahlenberg and Marvit suggest, “the time may be right” for this idea to come up in the presidential campaign:

Hillary Clinton and Bernie Sanders have attacked inequality and offered good proposals, such as increasing the minimum wage, which will help move the poor into the working class. But only a strong organized labor movement – and new, alternative forms of worker representation — can help move large numbers of people from the working class to the middle class. The WAGE Act is a simple, concrete proposal for change that would help both traditional unions and new, emerging organizations that represent workers. The presidential candidates should make it a central plank in their campaigns.

What a good idea. Ball’s in your court, Secretary Clinton, Sen. Sanders …

This blog was originally posted on Daily Kos on September 17, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.

Friday, September 18, 2015

Roscoe’s Chicken & Waffles Ordered to Pay $1.6 Million in Racial Discrimination Lawsuit

by Compton Herald - September 13, 2015

LOS ANGELES (MNS) — Not so tasty news for a Southern California institution.

Popular southern-style diner Roscoe’s House of Chicken & Waffles, the iconic Los Angeles restaurant empire lost a racial discrimination lawsuit that will set them back $1.6 million, unless a higher court of appeals overturns a lower court’s decision.

The suit was first brought by Compton resident and former employee Daniel Beasley, who worked for a time at the Pico Boulevard location of Roscoe’s. While there, Beasley says he was the recipient of racial discrimination at the hands of all-Latino management. Those claims include unfair treatment in the workplace, issues with shift scheduling, and — after Beasley complained to HR and Roscoe’s ownership — retaliation that ultimately ended with him being fired.

A Southern California jury sided with Beasley, awarding the man the prodigious million dollar sum in personal damages. The notoriously tight-lipped family-owned brand, which popularized fried chicken and waffles at seven locations in the southland since the 1970s, hasn’t replied to various requests for comment.

Management also “gave preferential treatment and better working schedules to Latino employees,” Beasley said.“(Roscoe’s) is owned by an African-American, but he gives full authority to [Latinos] to run it,” said Beasley, who added, he was harassed by management at the Pico boulevard location for being African-American.

“It just caught me by surprise because here I am fired, but I’m trying to fix the problem,” Beasley said. “You can’t treat people like that and get away with it, constantly.”

Beasley’s attorney, Scott Cummings, expressed the hope that the jury’s decision will send a clear message to all businesses against discrimination.

“Racism, racial harassment can occur, really, anywhere, even, you know, in a Black-owned business,” Cummings said.

Tuesday, September 15, 2015

Elizabeth Warren Points Out How Unfair This Hiring Practice Can Be

by Sam Levine, Associate Politics Editor, The Huffington Post

"We should call this what it is: discrimination," Warren and Rep. Steve Cohen (D-Tenn.) wrote in an op-ed.

Sen. Elizabeth Warren (D-Mass.) and Rep. Steve Cohen (D-Tenn.) are calling for a ban on the ability of employers to check the credit history of their employees, saying that the practice is a form of discrimination unfairly targets people who have suffered as a result of the 2008 financial crisis.

In an op-ed published on Tuesday, the two noted that an employee's credit report had nothing to do with their ability to do their job. They also noted that the 2008 financial crisis had cost many people their homes and given them debt that they are still resolving. Both Warren and Cohen have also reintroduced the Equal Employment for All Act, which would ban employers from checking the credit reports of potential employees with a few exceptions.

"For hardworking people struggling to make ends meet, the only way to get back on their feet is to find a good job and earn a paycheck. But even when they are able to sell their homes—often at a loss—or after they are forced to close their business’ doors or find temporary work, that bad credit history continues to haunt them," Warren and Cohen wrote. "And despite the often-desperate effort to find a job, many employers are unfairly shutting the door on applicants with less-than-stellar credit. We should call this what it is: discrimination."

If given permission by a prospective employee, an employer can pull their credit history and look for outstanding debts that the person has not attempted to resolve. In a 2012survey conducted by the Society for Human Resource Management, 53 percent of employers said that they did not conduct background checks on any of their job candidates, though 87 percent said that they did check the credit history of potential employees in financial positions. Forty-five percent of respondents in the survey said that they conducted credit checks to prevent theft and embezzlement.

But Warren and Cohen say that credit reports can contain inaccuracies that unfairly impact the employees.

"No one should be denied the chance to compete for a job because of a credit report that bears no relationship to job performance and that can be riddled with inaccuracies," they wrote. "This is an issue of basic fairness. Americans should be able to compete for jobs on their merits, not on whether they have enough money to pay all their bills."

Monday, September 14, 2015

9 Things Managers Do That Make Good Employees Quit

Travis Bradberry, Sep. 9, 2015

It’s pretty incredible how often you hear managers complaining about their best employees leaving, and they really do have something to complain about—few things are as costly and disruptive as good people walking out the door.

Managers tend to blame their turnover problems on everything under the sun, while ignoring the crux of the matter: people don’t leave jobs; they leave managers.

The sad thing is that this can easily be avoided. All that’s required is a new perspective and some extra effort on the manager’s part.

First, we need to understand the nine worst things that managers do that send good people packing.

1. They overwork people.

Nothing burns good employees out quite like overworking them. It’s so tempting to work your best people hard that managers frequently fall into this trap. Overworking good employees is perplexing; it makes them feel as if they’re being punished for great performance. Overworking employees is also counterproductive. New research from Stanford shows that productivity per hour declines sharply when the workweek exceeds 50 hours, and productivity drops off so much after 55 hours that you don’t get anything out of working more.

If you must increase how much work your talented employees are doing, you’d better increase their status as well. Talented employees will take on a bigger workload, but they won’t stay if their job suffocates them in the process. Raises, promotions, and title-changes are all acceptable ways to increase workload. If you simply increase workload because people are talented, without changing a thing, they will seek another job that gives them what they deserve.

2. They don’t recognize contributions and reward good work.

It’s easy to underestimate the power of a pat on the back, especially with top performers who are intrinsically motivated. Everyone likes kudos, none more so than those who work hard and give their all. Managers need to communicate with their people to find out what makes them feel good (for some, it’s a raise; for others, it’s public recognition) and then to reward them for a job well done. With top performers, this will happen often if you’re doing it right.

3. They don’t care about their employees.

More than half of people who leave their jobs do so because of their relationship with their boss. Smart companies make certain their managers know how to balance being professional with being human. These are the bosses who celebrate an employee’s success, empathize with those going through hard times, and challenge people, even when it hurts. Bosses who fail to really care will always have high turnover rates. It’s impossible to work for someone eight-plus hours a day when they aren’t personally involved and don’t care about anything other than your production yield.

4. They don’t honor their commitments.

Making promises to people places you on the fine line that lies between making them very happy and watching them walk out the door. When you uphold a commitment, you grow in the eyes of your employees because you prove yourself to be trustworthy and honorable (two very important qualities in a boss). But when you disregard your commitment, you come across as slimy, uncaring, and disrespectful. After all, if the boss doesn’t honor his or her commitments, why should everyone else?

5. They hire and promote the wrong people.

Good, hard-working employees want to work with like-minded professionals. When managers don’t do the hard work of hiring good people, it’s a major demotivator for those stuck working alongside them. Promoting the wrong people is even worse. When you work your tail off only to get passed over for a promotion that’s given to someone who glad-handed their way to the top, it’s a massive insult. No wonder it makes good people leave.

6. They don’t let people pursue their passions.

Talented employees are passionate. Providing opportunities for them to pursue their passions improves their productivity and job satisfaction. But many managers want people to work within a little box. These managers fear that productivity will decline if they let people expand their focus and pursue their passions. This fear is unfounded. Studies show that people who are able to pursue their passions at work experience flow, a euphoric state of mind that is five times more productive than the norm.

7. They fail to develop people’s skills.

When managers are asked about their inattention to employees, they try to excuse themselves, using words such as “trust,” “autonomy,” and “empowerment.” This is complete nonsense. Good managers manage, no matter how talented the employee. They pay attention and are constantly listening and giving feedback.

Management may have a beginning, but it certainly has no end. When you have a talented employee, it’s up to you to keep finding areas in which they can improve to expand their skill set. The most talented employees want feedback—more so than the less talented ones—and it’s your job to keep it coming. If you don’t, your best people will grow bored and complacent.

8. They fail to engage their creativity.

The most talented employees seek to improve everything they touch. If you take away their ability to change and improve things because you’re only comfortable with the status quo, this makes them hate their jobs. Caging up this innate desire to create not only limits them, it limits you.

9. They fail to challenge people intellectually.

Great bosses challenge their employees to accomplish things that seem inconceivable at first. Instead of setting mundane, incremental goals, they set lofty goals that push people out of their comfort zones. Then, good managers do everything in their power to help them succeed. When talented and intelligent people find themselves doing things that are too easy or boring, they seek other jobs that will challenge their intellects.

Bringing it all together

If you want your best people to stay, you need to think carefully about how you treat them. While good employees are as tough as nails, their talent gives them an abundance of options. You need to make themwant to work for you.

A version of this article first appeared at

Wednesday, September 2, 2015

How Much Money Does a Family Need to Get by Where You Live?

September 1st, 2015 | Laura Clawson

  We talk a fair amount about what people earn. The federal minimum wage is $7.25 an hour, or $15,080 for a year of full-time work. Workers are organizing to demand $15 an hour, or $31,200 a year. The median household income is around $52,000. To be in the top one percent of households, you need$385,195 in income. But we need to put those numbers in the context of what people need.

That minimum wage? It’s not enough to pay rent on an average one- or two-bedroom apartment in any state. But the median household income falls short of living costs in many places, as a new report from the Economic Policy Institute shows.

The basic family budget for a two-parent, two-child family ranges from $49,114 (Morristown, Tenn.) to $106,493 (Washington, D.C.). In the median family budget area for this family type, Des Moines, Iowa, a two-parent, two-child family needs $63,741 to secure an adequate but modest living standard. This is well above the 2014 poverty threshold of $24,008 for this family type. 

For a two-parent, two-child household, housing ranges from 10.2 percent of a family’s budget in Binghamton, N.Y., to 25.6 percent in San Francisco. Housing for this family type is most expensive in San Francisco ($1,956 per month), and is least expensive in Franklin, Poinsett, and Grant counties in Arkansas ($561 per month). 

Across regions and family types, child care costs account for the greatest variability in family budgets. Monthly child care costs for a two-parent, one-child household range from $344 in rural South Carolina to $1,472 in Washington, D.C. In the latter, monthly child care costs for a two-parent, three-child household are $2,784—nearly 90 percent higher than for a two-parent, one-child household. 

Among two-parent, two-child families, child care costs exceed rent in 500 out of 618 family budget areas.

Household income is often higher in the more expensive places to live, of course. In the Washington, DC, metro area in 2013, it was $90,149. But that means that more than half of families fell short of what was needed to support a basic but stable lifestyle; the EPI calculated its budgets using rents at the 40th percentile and the second-least-expensive food plan the USDA outlines, to give a sense of what type of budget we’re talking about. What that means is that many, many families in this country are cutting basic corners because their incomes don’t keep up with the cost of living—and no wonder, since the cost of living keeps rising while incomes stagnate.

Check out the EPI’s family budget calculator to see basic living costs for families in your area.

This blog was originally posted on Daily Kos on August 29, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.