What is Labor Day?

As we enjoy another Labor Day weekend, here are some quick facts about the holiday designed to celebrate workers.

How Labor Day Came About

"Labor Day differs in every essential from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those "who from rude nature have delved and carved all the grandeur we behold."

But Peter McGuire's place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states -- Colorado, Massachusetts, New Jersey, and New York -- created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.

Have a great Labor Day weekend everybody!

By Some Measures, the Gender Wage Gap Is Actually Getting Worse

SOURCE: ALPHA STOCK IMAGES - HTTP://ALPHASTOCKIMAGES.COM/ CREATIVE COMMONS

Most experts agree that wage disparity is not improving for women — and, according to the Economic Policy Institute, it may only get worse going into 2019. Women may be paid up to 45% less than men for the same job in certain fields, a Hired report showed, and women's actual earnings may only be 49% of men's earnings once measured by total earnings "across the most recent 15 years for all workers who worked in at least one year," a Georgetown study noted. At the current rate, pay equity won't be reached for another 108 years, the World Economic Forum revealed in its gender gap index at the end of 2018.

A lack of access to jobs at the top of the company continues to drive the gender pay gap, according to research from PayScale. The new study, The State of the Gender Pay Gap in 2019, offers insight into where the system breaks down for women and people of color — and data suggests that an "opportunity gap" may be the primary reason wage parity does not yet exist. 

Women face more barriers in the workplace that keep them in lower paid, lower level “individual contributor positions” as opposed to their male counterparts at the executive and management levels, the research noted. When women of color are factored into the equation, additional biases and barriers block their ability to reach parity.

Although modestly improved by 1% over the previous year, women still earn only 79 cents for every dollar earned by men. This data measures median salary without regard to job type, location, seniority, years of experience or industry. The controlled pay gap is only 98 cents to every dollar — but that stat does not paint the whole picture, PayScale said, as women of color consistently earn less than white men.

Employer Extending “Medical Leaves of Absence” Beyond 12 Weeks Creates an FMLA Trap for Unwary Employees

An opinion letter issued last week by the U.S. Department of Labor (DOL) makes clear that neither employers nor employees can decline to designate Family Medical Leave Act (FMLA)-qualifying leave as such. DOL also made clear in its letter that while employers are free to adopt leaves policies more generous than the FMLA, they cannot extend the FMLA's protections beyond 12 weeks (or 26 weeks for military caregiver leave). The effect of these interpretations can create a trap for the unwary employee.

 When an employer determines an employee needs leave because of an FMLA-qualifying reason, that leave must count toward his or her FMLA allotment, even if the employee requests otherwise. This means that employees cannot, for example, opt to take employer-provided sick or vacation time first; FMLA leave would have to run concurrently. And even if the employer chooses to grant more leave than the 12 weeks required by law, the employer cannot extend the law’s job protection to those additional weeks.

Here’s an example: An employee is out on FMLA leave due to a surgery or some other serious health condition. Near the end of the 12-week FMLA period, the employee’s doctor indicates that just a couple more weeks of leave would be beneficial medically.  The employee asks his or her employer and the leave extension is granted.  Then at the end of the leave period (now 14 weeks because of the extension) the employer says things have change and the employee had to be replaced or his/her job was eliminated.  Does the employee have protection under the FMLA in this scenario?  Probably not. 

Over the last few years, we have seen many employers building in FMLA extensions into their medical leave policies.  The policies often provide for 15 weeks of “Medical Leave” rather than the 12 weeks mandated by law. And, while more leave seems like a good thing, it can be a trap. This is because only the first 12 weeks of the 15-week medical leave period has job protection enforceable under the FMLA. If the employee stays out beyond 12 weeks, their job is no longer protected by federal law, even though the employer’s own policy granted 15 weeks of medical leave. 

Are extended “Medical Leave” policies an example of companies being generous or are they carefully laid traps for unwary employees?  A little of both perhaps. But the bottom line is that employees must remember that no matter what anyone at the company tells you, you only have FMLA job protection for the 12 weeks mandated by the statute.  

Related: New Lawsuit Takes On Common FMLA Trap

California Considering Ban on Employer Forced Arbitration

Last year, a bipartisan coalition in the United States Senate sponsored legislation to ban the use of mandatory arbitration agreements with regard to claims of sexual harassment and sex discrimination. The federal bill is still pending. 

Now, a similar bill has been filed in the California legislature. If it passes, the California bill would prohibit employers from requiring mandatory arbitration agreements as a condition of employment. And unlike the federal bill mentioned above, the California bill would prohibit arbitration clauses as a condition of employment as to all types of employment claims—not just sexual harassment and sex discrimination claims.

If passed, the California law would be an important start to a movement to get rid of employer-based, forced arbitration. Statistics show that arbitration is unfair to employees and is used by some employers to effectively opt out of the judicial system into a rigged, pseudo-court where wrongdoing can be effectively covered up by companies. 

And claims that arbitrating claims is more cost-effective than traditional adjudication in court are are not supported by the available statistical data. Many employment corporate defense lawyers point out that research shows arbitration is neither faster nor less expensive than litigation. 

There has long been data showing that a solid majority of Americans oppose forced arbitration in the employment context.  If this bill passes and becomes law in California, perhaps it will be the beginning of a nation-wide movement to allow employees back into the courtroom. 

Read More: National Law Review

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

• McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.

• Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.

• The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.

• McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.

• An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.

• At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”

• McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

• McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.

• McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

If you want to read more, start here.

Backlash Against Remote Working as Companies Order Employees Back to the Office

An IBM-convened panel at SIOP 2017 explored the benefits and challenges of remote working. With perspectives from academia as well as public and private sectors, the consistent message was that teleworking works, and that associated challenges can be managed with careful planning and communication.

Apparently IBM doesn't believe its own research.

Last week thousands of IBM employees — roughly 40 percent of the total 380,000 workforce — were given an ultimatum. They must either relocate to a regional office or leave the company. This will be a substantial hardship for many of those employees because they may live hundreds of miles from the nearest regional office. 

IBM's move is part of a growing trend among larger tech companies that are rethinking telework. Within the last several years Best Buy and Yahoo both ended or severely restricted their telework programs.

The fact that Yahoo and IBM have made this move is pretty surprising to me. Most research on the subject indicates that teleworking, when handled correctly, works. In fact it works better than working in the office for many. The true enemy of deep, substantive work is often the office environment itself. Meetings, office chit chat, and all the distractions that find their way to your office or cubicle are the real enemies of work. 

Here is an interesting article from remote work proponent Jason Fried discussing why he thinks companies like Yahoo are making a mistake by eliminating remote work options. Put simply, if you hire quality people who are interested in doing meaningful work, then remote working is a great option. If remote working is not working in your organization, then it likely indicates a problem with the type of people you are hiring or in the structure of your organization itself. 

Perhaps these companies that are ending remote work programs are mistakenly addressing a symptom of a larger problem within their organizations.  

Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."

Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.

2. You know that written report from number 1, above? KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost.

3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally.

4. Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent.

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.