Monthly Archive for June, 2011

New Report Quantifies Paid Sick Days’ Value to Working Families

Published on June 30, 2011 in Vicki Shabo and Work & Family. 0 Comments

Vicki Shabo, Director of Work and Family Programs

For working families today, paid sick days can mean the difference between staying afloat and being unable to afford basic expenses like food and transportation – and this lifeline comes at minimal or no cost to businesses. This is the theme of a report released yesterday at a briefing co-hosted by the Economic Policy Institute (EPI) and the National Partnership. I was honored to join a group of panelists, including Liz Weiss, labor policy advisor to Senator Tom Harkin, and Elise Gould, director of health policy at EPI, to discuss EPI’s compelling new research about just how precarious American families’ economic security is in tough times.

EPI’s new report, authored by Gould, paints a stark picture of what it means when a working parent’s job offers no paid sick days. In the best case, the worker takes time off without pay. For the average family without paid sick days, if one parent misses three-and-a-half days of work in a month, it loses the equivalent of the family’s entire grocery budget. Missing five days of work reduces the same family’s income to 84 percent of the amount needed to get by.

Even worse, taking an unsanctioned sick day means job loss. At a time when nearly half of all unemployed Americans have been looking for new work for six months or more, this is a cost that struggling families can’t afford to bear.

Yesterday’s discussion included some compelling evidence that refutes concerns about whether businesses can afford to give workers the right to earn paid sick days. An EPI report released in March focused on the cost to businesses in Connecticut of providing paid sick days. The report showed that Connecticut businesses – many of which, beginning in January 2012, will be required to provide paid sick time to certain workers under America’s first statewide paid sick days law – will bear minimal costs as a percentage of sales (fewer than one-half of one percent). This matches the reported experiences of San Francisco businesses, which have been living easily and successfully with the nation’s first paid sick days law for four years now.

Momentum for paid sick days policies is growing through campaigns in cities and states around the nation. Ultimately, a federal standard is the best way to ensure that all workers have basic paid sick days protections. Support for the Healthy Families Act, a federal paid sick days bill, reached new levels in the last Congress and continues to grow in the 112th. Paid sick days are also a key part of Representative Lynn Woolsey’s Balancing Act legislation, which was reintroduced this week. Representative Woolsey is a longtime champion of measures that are important to working families. She announced her retirement this year, and America’s families will miss her powerful advocacy. Her omnibus work and family bill addresses the multiple challenges working families face. Congress should pass it. We hope to see paid sick days protections included in many new pieces of legislation addressing the rights of domestic workers and health equity this year.

As Liz Weiss said yesterday, Senator Harkin is “proud to have taken up the mantle of paid sick days because it not only benefits public health and family health but increases and ensures the economic security of families.” I couldn’t agree more. The time for action is now. Working families can’t afford to wait any longer.

Wal-Mart v. Dukes: A Supreme Blow to Corporate Accountability, the Class Action Vehicle – and Justice

Published on June 27, 2011 in Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

The Supreme Court’s decision in Wal-Mart v. Dukes was deeply disappointing for those who care whether workers can vindicate their statutory rights. Last week’s narrow and controversial decision creates new hurdles for the 1.5 million women who are fighting the discriminatory pay and promotion practices of the nation’s largest private employer and for all workers who seek to challenge systemic employment discrimination in the future. The ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it.

Wal-Mart’s ten-year strategy in this case was to divide and conquer. Unfortunately, that strategy prevailed before the Supreme Court. The corporate giant convinced a narrow majority to reverse lower court decisions to certify the class of women. The Court was sharply divided on the question of whether the women should be allowed to move forward.

Justice Scalia’s opinion for the five justices in the majority held that the women could not proceed because they did not satisfy the commonality requirement of Rule 23(a) of the Federal Rules of Civil Procedure, which provides that a class can only proceed if there are common questions of law or fact.

By contrast, Justice Ginsburg’s opinion for the four dissenters found that the plaintiffs’ voluminous anecdotal, statistical and sociological evidence did in fact present common questions that should enable the class to proceed. The dissenters recognized that the plaintiffs’ evidence “suggests that gender bias suffused Wal-Mart’s company culture.” They also recognized that the plaintiffs satisfied their burden to identify “particular policies and practices” that were “alleged to affect, adversely and globally, women employed at Wal-Mart’s stores.” In other words, the dissenters recognized a widespread culture of discrimination that played out in lower pay and fewer promotions for women.

While there was agreement that the class could not be certified under the procedures set out under Rule 23(b)(2), the dissenters would have remanded the case for a determination of whether the class could proceed under the notice and opt-in requirements of Rule 23(b)(3).

The majority’s narrow reading of Rule 23 in the case establishes new and troubling precedents. Even though the Court was presented with the limited question of whether to certify the class, the majority delved deep into the merits of the underlying claims of discrimination. They noted that an employer could not “operate[] under a general policy of discrimination” if it has an “announced” anti-discrimination policy on the books, as Wal-Mart did. The majority seemed to suggest that plaintiffs should have to meet some threshold ratio of affidavits relative to the number of class members. On one hand, the majority discounted sociological expert evidence of bias and stereotypes in the corporate culture on the basis that such evidence could not be quantified in precise figures; on the other hand, they discounted statistical evidence that quantified the discrimination.

Ultimately, the majority concluded that a corporate policy that delegated excessive, subjective decision-making authority to managers did not create a common question. However, the dissenters noted that unstructured policies and practices open the door for unlawful bias to creep into personnel decisions. “The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” wrote Justice Ginsburg. “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

The Wal-Mart decision underscores the urgent need for a system of justice that levels the playing field for individuals like Betty Dukes who challenge corporate Goliaths like Wal-Mart. As noted in the amicus brief filed by the National Partnership for Women & Families, the U.S. Women’s Chamber of Commerce and California Women’s Lawyers, historically, class actions have served as a tool to do just that – to level the field for workers seeking to vindicate statutory rights and obtain meaningful relief. Class actions have long played a key role in rooting out discrimination, and they provide an efficient mechanism that can serve the interests of workers, employers and the courts.

Even though the Court dealt a significant blow to the women of Wal-Mart and to the class action vehicle with this decision, the fight for fair pay and fair opportunities for advancement for women is not over. This decision was a denial of class certification alone; it did not pertain to the merits of the significant claims of discrimination. The plaintiffs have vowed to continue their fight for justice in the courts through smaller class actions or individual cases.

On a parallel track, advocates will intensify the fight to advance policy solutions. The Court’s decision underscores the need for legislation like the Paycheck Fairness Act, which would deter companies from breaking the law and provide real remedies for those who experience discrimination.

Women need fair pay and fair opportunities for advancement – for themselves, their families and the strength of our communities. The pursuit of justice at Wal-Mart and throughout the country is far from over.

The Pursuit of Justice is Not Over

Published on June 20, 2011 in Judith Lichtman and Workplace Fairness. 2 Comments

Judith L. Lichtman, Senior Advisor

Today, the Supreme Court ruled that the women of Wal-Mart cannot proceed as a group as they challenge the company’s discriminatory pay and promotion practices. It was a disappointing day for the women involved in the case and for all of us who are fighting for fair pay and fair opportunities for advancement for America’s women.  But today’s decision is not the end.

The good news is that the Court’s decision was not about the merits of the women’s charges, only whether or not they could continue with the case as one group or class. On that question, the Court decided that the women of Wal-Mart did not have enough in common to bring a class action for claims of discrimination. Incredibly, the Justices relied on the fact that Wal-Mart has a written policy prohibiting discrimination, paired with individual managers’ discretion, to support its ruling. As all three women on the Court, led by Justice Ginsburg and joined by Justice Breyer, noted in dissent, the majority ignores the realities of how employment discrimination really plays out in the workplace. “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

This setback means that the women of Wal-Mart will have to continue their pursuit of justice in smaller groups and through individual cases. After 10 years of fighting for their day in court, there is no doubt that many will continue to do so. Wal-Mart can now expect to deal with thousands of charges of discrimination nationwide.

These women have legitimate cases and Wal-Mart – as the nation’s largest private employer – must be held accountable. There is clear evidence that the company paid women less than men in every job category and that managers hand-picked employees for promotions based on a “good old boys” network. That is unacceptable – and it is against the law.

What is just as clear is that this opinion underscores the serious need for a federal law that will help prevent and remedy pay discrimination against women in this country.  America’s families rely more than ever on women’s incomes—which makes the need for fair pay all the more urgent.

Wal-Mart’s actions are part of a larger pattern of discrimination in this country. Women are still paid, on average, only 77 cents for every dollar paid to men. We hold only 40 percent of management positions and one out of six corporate officer positions.

Part of the reason pay inequity is so widespread is because employers know that under existing laws they won’t be held accountable for discrimination’s true cost. And most victims of pay discrimination don’t realize they’re being underpaid. Many employers, like Wal-Mart, discourage or prohibit their employees from discussing their wages with co-workers.

Fortunately, the Paycheck Fairness Act – re-introduced in Congress on Equal Pay Day this year – would close the loopholes in existing laws that make it easier for employers to engage in pay discrimination, protect employees who discuss or inquire about pay, and strengthen the penalties for employers who choose to break the law. If the Paycheck Fairness Act had been in place 10 years ago, many women in the Wal-Mart case would have been protected from the discrimination that they are challenging today.

The pursuit of justice for the women of Wal-Mart and women facing discrimination around the country is far from over. The Wal-Mart women will continue to challenge the company’s policies in the courts, and we will continue to call on Congress to pass the Paycheck Fairness Act and other measures to restore our civil rights protections.

Women need and deserve fair pay and fair opportunities for advancement. We will get there, in spite of today.

Connecticut Makes History

Published on June 4, 2011 in Debra Ness and Work & Family. 0 Comments

Debra Ness, President

Today is a great day for workers in Connecticut, and a day that offers hope to tens of millions of workers throughout the country who cannot now earn paid sick time, no matter how long they hold a job or how solid their work record is. After an impressive campaign, steady political leadership and strong advocacy from supporters in the state, Connecticut’s General Assembly has passed the first statewide paid sick days law. It’s a huge and historic victory for workers in the state and, we hope, the first step in a new wave of progress on this issue.

With Governor Dannel Malloy poised to sign the bill, Connecticut will soon join San Francisco and the District of Columbia in giving workers a well-deserved, common-sense right to earn paid sick days. It wasn’t a quick or easy victory. We have been working with allies in Connecticut, including the Working Families Organization and Everybody Benefits coalition, for years – conducting research, commissioning polls, testifying, speechifying, editorializing and so much more. Today, we know it was well worth it.

That’s because the new law means that hundreds of thousands of workers in Connecticut will no longer have to report to work sick and spread contagion to co-workers or customers. Parents who can ill afford to miss a day of work or risk their job will no longer have to leave sick children home alone or send them to school or daycare where they can infect other children. Cash-strapped working families in the state will no longer have to lose pay – and jeopardize their economic security – when illness strikes.

That’s already the case in San Francisco, where a paid sick days law has been in place for more than four years. Today, the San Francisco law is a widely-recognized success; it’s even won support from some who once opposed it.

It is time for lawmakers in all cities and states, and at the federal level, to recognize that adopting a paid sick days standard should be a priority. More than 40 million workers in this country – and more than 80 percent of low-wage workers – don’t have a single paid sick day to recover from illness or care for their families. That’s bad for workers, bad for families, bad for businesses, bad for economies and bad for public health.

We can do better. Connecticut is helping to blaze a trail and show us a better way. Let’s hope that lawmakers in other cities and states – including Massachusetts, Philadelphia, Denver, Seattle and New York City – soon do the same.

Connecticut may be the first state to adopt a statewide paid sick days measure, but we are determined that it won’t be the last. No worker in this country should have to choose between health and a paycheck or even a job. With this victory in Connecticut, we’re one step closer to making that a reality for all working families.