To Tweet or Not to Tweet? Public Employee Rights During Free Time

Since President Trump took office, public participation in mass forms of civic participation has increased dramatically. The Women’s March, in Washington, D.C. and sister cities across the country, was the largest march in U.S. history. Thousands gathered at airports to protest the Muslim Ban. Activism generated more protests, like “A Day Without Immigrants,” “A Day Without Women,” and to come, a March for Science. But what role can employees working for the federal government have in speaking out? Mounting public pressure against employees highlights the need to educate public employees on their rights to engage in civic discussion and protect their interest in political speech.

A Park Ranger Started the Movement

The first display of public employee participation in civic discussion around Trump administration actions and policies began on January 20th, when the National Park Service (NPS) retweeted a side-by-side comparison of 2009 and 2017 inauguration crowds. The NPS later deleted the retweet and spokesman Thomas Crosson apologized for “mistaken RT’s.” In the first week of his presidency, President Trump instructed the Environmental Protection Agency (EPA) and the Interior Department, which oversees the NPS, to cease communicating through social media. But on January 24th, the Badlands National Park, tweeted a series of climate change data, including “Burning one gallon of gasoline puts nearly 20 lbs of carbon dioxide into our atmosphere. #climate.” By nightfall, the posts were deleted and a NPS official said that the posts were improperly posted by a former employee.

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Today’s News & Commentary — April 21, 2017

Amidst a UAW-driven unionization effort, workers at Tesla’s Fremont, CA factory have filed a charge of unfair labor practices with the NLRB.  The workers allege that Tesla spied, coerced, and intimidated the workers, and prevented them from communicating with one another.  These efforts, they allege, violate multiple sections of the National Labor Relations Act, including their right to unionize.  The workers also claim that the confidentiality agreement Tesla makes workers sign as a condition of employment is overbroad, impinging upon their rights.  The confidentiality agreement does not just protect trade secrets, but threatens criminal punishment for workers who speak publicly or to the media about “everything that you work on, learn about, or observe in your work about Tesla.”  The NLRB office in Oakland will investigate the workers’ charges.

The Minnesota Senate passed pre-emption legislation usurping local control over labor and employment requirements and transferring it to the state, preventing municipalities from setting local minimum wages.  The bill passed with a vote of 35-31. Bill sponsor Sen. Jeremy Miller, R-Winona, argues that the bill helps Minnesota employers and increases employment because employers no longer have to comply with a thicket of differing laws and standards.  The bill will merge with a Minnesota House-passed bill and come before Democratic Gov. Mark Dayton, who has stated he does not yet know whether he will veto the measure.

Relatedly, Wisconsin Gov. Scott Walker signed legislation preventing local governments from requiring contractors to use unionized workers for public projects, and from even considering the use of unionized labor as a positive factor when deciding to whom the municipality ought to award the contract.  The legislation passed through the House and Senate along party lines in February.  Republicans used the labor costs for the new Milwaukee Bucks stadium as an example of the excessively high wages that the bill would prevent: $12 an hour in 2017, rising to $15 an hour by 2023.

Boston Review published an essay earlier this week on the fraught relationship, historically and in the present day, between labor and the Democratic Party.

Today’s News & Commentary — April 19, 2017

The New York Times weighs in on the effect that Trump’s “Hire American” order may have on tech worker visas.  According to the Times, the order “represents a small win for bigger tech companies,” but may hurt smaller technology companies that “cannot afford to pay high salaries and are already struggling to attract talent.”  Senator Schumer, however, had a different take: “This does nothing,” he said. “Like all the other executive orders, it’s just words — he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”

Is O’Reilly no longer a factor?  That’s the question being asked at Politico, which cites the Wall Street Journal’s report that Fox News “is preparing to cut ties with . . . O’Reilly.”  Since an April 1 New York Times story broke the news that Fox had paid out about $13 million to settle sexual harassment allegations against O’Reilly, pressure has been mounting on Fox to fire its biggest star.

As the New York Times puts it, “[t]he threat of a Hollywood strike is getting real.” Members of the Writers Guild of America will begin voting today on whether to authorize a walkout.  If members approve a strike, it could have “serious implications.” When writers went on strike a decade ago, it cost the Los Angeles economy an estimated $2.5 billion, affecting everyone from the writers themselves to caterers, limo drivers, and florists.  As for how a strike would affect viewers, the Times explains that late-night comedy shows would screen reruns, some scripted series would be delayed, and daytime soap operas would probably end (unless producers bring in non-union writers).  A strike might also speed the shift from network viewing to Netflix and Amazon.

Gender Equality at Work Requires More Than Corporate Tokenism

Last month, a Fusion article warned women to beware of “the guy who talks a big game about gender equality… then turns around and harasses you, assaults you, or belittles you,” coining the term, the “woke misogynist.” The same warning can be made about corporate gestures toward gender equality. In an age where feminism is cool, it now takes more scrutiny to discern the genuine from the superficial. Many businesses are relying on their image as hip, progressive organizations to appeal to socially-conscious consumers by making statements about equal pay, donating to the ACLU, or appointing a handful of women to their boards. Yet, so many of these companies continue to foster systemic cultures of sexual disrespect, harassment, and assault.

Sex Discrimination in the Workplace

Multiple accounts of sexual harassment have recently come to light in the tech industry. Susan Fowler’s February blog post revealed the rampant sex discrimination and harassment she faced while an engineer at Uber. She recounted her experience with the HR department, which retaliated against her for making complaints and refused to take action against her “high performing” harasser. She says the number of women in the organization dwindled from 25% to 6% while she was there. Another survivor came forward with her account a few weeks later under the alias Amy Vertino, detailing similar backlash for reporting the sexist behavior of her colleagues. She reports Uber CEO Travis Kalanik “is well known to protect high performing team leaders no matter how abusive they are to their employees.”

Sex discrimination in employment is not unique to Uber. The tech industry averages 21-22% female employees. 60% of women in tech report being sexually harassed in the workplace. The hostile environment both creates barriers for women entering the tech industry and also causes them to leave the field at alarming rates, 45% higher than men. After reading Fowler’s blog, The Observer reached out to women in tech and, within a few hours, had twelve more personal accounts of workplace sexual harassment. Allison Esposito, the founder of Tech Ladies, said they hear similar stories at least once a week. A female engineer recently filed a lawsuit against Tesla for failure to take action against the pervasive harassment. TechCrunch conducted a number of anonymous interviews that further evince the rampant mishandling of sexual harassment complaints in the industry.

Even beyond tech, the core issue is that sexism pervades male-dominated industries. The culture reflects the leadership, and as Rachel Bitte, chief people officer at Jobvite, explains, “tech is the newest industry to see male dominance in leadership roles, but we saw the same sort of problems that resulted in lawsuits decades ago in industries such as manufacturing or mining.”

The financial industry is also struggling to increase diversity and address discrimination. 25% of companies on the Russell 3000 index have no women on their boards. According to an SEC report of Fortune 500 companies, women and minorities held 30.8% of corporate board seats in 2016, which the Alliance for Board Diversity criticized as not moving fast enough. Increasing board diversity requires planning, they counseled, given that the board is often a reflection of the lack of diversity in the rest of the company.

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Today’s News & Commentary — April 18, 2017

President Trump will sign an executive order today to make it harder for tech companies to recruit foreign workers, according to the New York Times. Trump often vowed to end the H-1B program on the campaign trail. Though this order falls well short of that goal, it represents a significant step towards following through on the president’s economic nationalist vision.

Alyssa Battistoni, writing in Dissent, argues that despite all its positives, the left should be wary of embracing universal basic income during the Trump administration. She writes, “[I]t’s hard to imagine any way a basic income program implemented in the Trump era would be anything but a vehicle for dismantling the remains of the welfare state while simultaneously reinforcing nationalism by excluding non-citizens from shared prosperity.” The piece was highlighted in the New York Times roundup of high quality partisan writing.

New York City plans to force Uber to allow customers to tip through its app, according to the Boston Globe,  and California may soon follow suit. Uber has long resisted allowing tips, even as competitors have permitted users to add gratuities to their fare. In Uber news unrelated to tipping, the Washington Post summarizes the company’s recent struggles in the wake of yet another executive leaving his post.

Bloomberg dove into some labor market numbers to analyze what made the German economy the best in the developed world for workers. Two theories emerged. First, the country’s strong labor unions have been willing to think long term with regard to wages. Second, Germany has seen a steady rise in exports that is at least in part attributable to the country benefiting at the expense of the weaker economies in the euro zone.

Today’s News & Commentary — April 17, 2017

Why don’t all jobs matter? The provocative question is posed by Paul Krugman in today’s New York Times. Krugman questions why so much focus is on mining and manufacturing jobs, when the service sector—a much bigger slice of the economy—is dwindling. He points to several possible reasons, though complicates them all: the importance of mining jobs to local economies, the “political footballs” they have become, and the fact that miners and manufacturers tend to be white and male. Krugman ultimately concludes that saving jobs that are being lost may not be the smartest tack; instead, we should be investing in reeducation and guaranteeing benefits like health care.

Dylan Matthews of Vox summarizes a number of ideas—inspired largely by Europe—for how to save unions. First, unions could be organized on the sector level instead of on the company level, so all workers in a particular industry are affected. With less cross-company labor competition, the argument goes, businesses will be less union-averse. But how do you avoid the “free rider” problem, where, as in France, nearly every worker is covered by a collective bargaining agreement but fewer than 10% of workers are actually in unions? Some countries, like Denmark and Finland, have systems where unions run unemployment insurance, increasing the contact between the labor organizations and possible members. As Professor Sachs notes in the piece, however, such a change might be very tough during the Trump years.

Fast Company Co.Design covers a recent report by the Center for Business and Human Rights at NYU Stern School of Business on migrant workers. The report highlights how many of these workers end up paying to work: agents and recruiters require trumped-up fees and many workers end up dishing out extra for airline tickets and other documents. As the piece notes, “When you finally get to work, you might already owe a year’s worth of wages.”

Where Tips End and Wages Begin

One year ago, this blog featured a post that outlined various reasons why the restaurant industry’s use of tips in lieu of guaranteed wages had come to provoke, in the author’s words, “a firestorm of criticism”: that reliance on tips as a significant component of server take-home pay 1) destined many servers to earning a sub-minimum wage; 2) encouraged female servers to tolerate sexual harassment by their customers; and 3) resulted in pay discrimination unrelated to the quality of servers’ work, a consequence of customer biases and their impacts on the amounts tipped.

Since the post’s publication, this firestorm has continued unabated. In fact, Uber even pointed to customer bias as a reason not to add a tipping function to its ride-sharing app, as its competitor Lyft has done. Moreover, recent modeling by FiveThirtyEight illustrates the volatility of tip-based incomes in the restaurant industry, as well as divisions between different classes of restaurants vis-à-vis the tipped amounts that their servers typically earn, which further underscores the question whether tipping can serve as a reliable substitute for set pay.

In this vein, a recent opinion out of the U.S. Court of Appeals for the Tenth Circuit sheds new light on the shortcomings of tipping as a reliable form of compensation, highlighting the dangers posed to employees by the liminal space between “tips” and “wages” under the Fair Labor Standards Act (FLSA).

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