From USW partner site, Workplace Fairness
For more information on your rights in the workplace, visit the Steelworkers' Workplace Rights Resource Center
The retail juggernaut known as Wal-Mart is not having a very easy time of it these days. Reeling from the release of some very damaging internal memos, and gearing up to combat a new documentary that chronicles Wal-Mart's role in bringing down wages and working conditions, the company has been forced to establish a PR war room. Is it really just because they're the biggest that everyone is aiming to bring them down? Or are they really just worse than everyone else? With all of the new information that is being disclosed this month, it will be up to the American people to vote with their holiday shopping dollars.

It is likely that Wal-Mart has suspected for months how rough it would be on their image during the month that documentary filmmaker Robert Greenwald (Outfoxed) released his latest work, "Wal-Mart: The High Cost of Low Price." It is less likely that they knew how much they would already be reeling from the release of highly damaging internal memos that demonstrate just how far Wal-Mart is willing to go to bring you "always low prices."

The first of the damaging memos had to do with health care. Wal-Mart has long been criticized for the small percentage of its employees who are able to take advantage of the company's health care plan. Between the long waiting periods, especially for the part-time employees which comprise the majority of its workforce, and the high deductibles, which are simply not affordable for workers making less than $20,000, and much lower in some cases, Wal-Mart's insurance plan is simply not an option for many of its workers. Fewer than half have company-sponsored insurance, and 5% are on Medicaid, the government health plan for the poor. Nearly half the children of employees are covered only by Medicaid or have no insurance. (See USA Today article.) This means that taxpayers often must assume the burden when Wal-Mart employees and their families get sick.

But if Wal-Mart had its way, its employees would simply not get sick at all, because Wal-Mart would only have the youngest and healthiest employees on its staff. A memo written by Susan Chambers, Wal-Mart's executive vice president for benefits, on ways to reduce the company's healthcare costs, was recently leaked to the New York Times. (See Chambers memo.) The memo recommends that all jobs include some physical activity (e.g., all cashiers do some cart-gathering), so as to discourage unhealthy job applicants, because ''The least healthy, least productive associates are more satisfied with their benefits than other segments and are interested in longer careers with Wal-Mart'' and this move would "also dissuade unhealthy people from coming to work at Wal-Mart.''

While the memo didn't go so far as to recommend pushing out older workers, Chambers reminded Wal-Mart management that ''the cost of an associate with seven years of tenure is almost 55 percent more than the cost of an associate with one year of tenure, yet there is no difference in his or her productivity. Moreover, because we pay an associate more in salary and benefits as his or her tenure increases, we are pricing that associate out of the labor market, increasing the likelihood that he or she will stay with Wal-Mart.'' Notably, Chambers acknowledged that the criticisms leveled at Wal-Mart's health plan are hardly meritless. The memo states, ''Wal-Mart's critics can easily exploit some aspects of our benefits offering to make their case; in other words, our critics are correct in some of their observations. Specifically, our coverage is expensive for low-income families, and Wal-Mart has a significant percentage of associates and their children on public assistance.''

Wal-Mart then rushed to control the damage, by announcing a so-called new plan with low premiums ($11 to $65 a month) and high deductibles. The first three doctors' visits and three prescriptions are handled with nominal co-pays. To help employees pay out-of-pocket expenses up to the deductible, Wal-Mart also promotes tax-free health savings accounts, a kind of 401(k) plan for medical expenses. (See USA Today article.) Critics charge that this, too, is a sham, as it fails to address the real problem with Wal-Mart's coverage:

The cheapest deductible on Wal-Mart's new plan is $1,000 for individual coverage and $3,000 for family coverage. For Wal-Mart workers, many of whom make $12,000 to $15,000 a year, the cost could be as much as 25% of their take-home pay for individual coverage and up to 40% for family coverage.

From USW partner site, Workplace Fairness
For more information on your rights in the workplace, visit the Steelworkers' Workplace Rights Resource Center

What do the band U2 and the movie North Country have in common? Even when you count lead singer Bono's commitment to social consciousness, the answer is not that much, except for the fact that I saw them both in the past week. But after having one of U2's most recent hits embedded in my brain after the concert, I think it's a good summation of the theme of North Country, a film about the nation's first sexual harassment class action: Sometimes You Can't Make It On Your Own. And both are highly worth seeing.

When Bono and company visited our nation's capital, politics was on the mind of the man rumored to be in the final running for this year's Nobel Peace Prize. Whether it was U2's classic anthems "Pride (In the Name of Love)" and "Sunday Bloody Sunday," Bono's meeting with President Bush while in town, or asking the concert audience to sign up via cellphone for the singer's ONE Campaign to combat AIDS and extreme poverty, there were constant reminders of the need to pay attention to what's going on the world around us. Bono wasn't going to let the audience forget that, and his tireless activism speaks even louder than his band can sing. (See Reviews "I Have a Brother," and U2, Saving Its Thunder For First.)

One of U2's singles from its latest release, How to Dismantle An Atomic Bomb, third on the album and third on the set list at last week's concert, is "Sometimes You Can't Make it On Your Own." While the lyrics chronicle Bono's relationship with his father, who passed away in 2001, it's also a fitting summation for the movie North Country, starting Oscar-winning actress Charlize Theron, as the movie's protagonist, Josey Aimes.

The employment lawyers among us will also recognize that it parallels the story of our nation's first sexual harassment class action, Jensen v. Eveleth Taconite (a case with "a long, tortured, and unfortunate history," according to Judge Lay, who wrote the 8th Circuit opinion) with the female plaintiffs represented by NELA member firm Sprenger + Lang. Some may have even read the book upon which the story is based, Class Action: The Landmark Case that Changed Sexual Harassment Law, by Clara Bingham and Laura Leedy Gansler (although the movie is a fictionalized account, since the plaintiffs chose not to sell the rights to their story.)

Josey Aimes, after fleeing an abusive marriage with her two children, returned to her childhood home in northern Minnesota's Iron Range to live with her parents, who were none too happy to take her in. Eager to escape their censure and to make it on her own, she takes a job, at the urging of her friend Glory (played by another Oscar winner, Frances McDormand), at the local mines. The work was hard, but dealing with her male coworkers, recently forced to accept female colleagues at the mine for the first time, was even harder.

The movie is rated R, for some graphic scenes of sexual harassment and rape, but those scenes were necessary to convey the horror of what Aimes and her coworkers suffered. After enduring repeated and vicious harassment, Aimes started to fight back. She first thought she could resolve the problem internally (and such efforts are now a legal requirement in most situations), but like many others, she found no support from company managment, and ended up being targeted for retaliation. She ultimately turns to hometown hockey hero turned lawyer (played by Woody Harrelson) to take legal action.

Some of the traditional forms of support than other plaintiffs can count on were not available to Josey Aimes. She was single, and her father, who also worked at the mines, was disapproving. Her kids were embarrassed by what was happening to her -- especially the public airing of her sexual past. And the support you would think she could count on -- that of other women enduring similar harassment -- was hardly the sisterhood you might expect. The others were fearful for their jobs and willing to lie to save them, given the dearth of other similar opportunities in the area. The union, dominated by its male membership, was also unwilling to support Josey and the other women, despite the best efforts of Josey's friend Glory, who was the only female union representative.

Without trying to give too much away (although I suspect you can guess how it ends), it is only when Josey is able to attract the support of others, through her own tenacity and her lawyer's persuasiveness, that she is able to succeed. It's obviously a strong testimony to the power of a class action case. But perhaps it's also a subtle indictment of the difficulty of bringing an individual case, when that involves taking on not only a powerful employer, but scared coworkers dependent on their employer to survive. And whether you have no union, or at best, a completely ineffectual union like Aimes was so unfortunate to have, going it alone is isolating and much more difficult than having others on your side.

Not every case is a class action, of course. And not every case will be as hard fought as the one from the Minnesota mines. But anyone inspired enough by Josey's story to themselves consider fighting back should remember "Sometimes You Can't Make it On Your Own." It certainly won't hurt to have your friends, your family, your coworkers, and your lawyers on your side, because even then, you're up for a tough battle.

As Theron said in a recent interview, "It's very easy to sit in our comfy environment and say, 'I would fight like Josey.' But would you, really? Would you fight for, like, 14 years when everybody's ostracizing you and saying you're a slut and a nut and crazy and you asked for it and your children are being beaten up in school? That, to me, is incredibly brave." (See San Francisco Chronicle article.) This film salutes the bravery of the women of the Iron Range, and ultimately all those who have fought back against sexual harassment, while giving those who haven't experienced this level of egregious workplace conduct a flavor of what it's like.

--Paula Brantner, Program Director
www.workplacefairness.org

More Information:

Steelworkers' Workplace Rights Resource Center:  Sexual Harassment

North Country movie reviews

Minnesota Lawyer article: Interview with Paul Sprenger, who represented the Minnesota plaintiffs.

Slate article: Niki Caro - The director of North Country talks about sexual harassment (and if you haven't seen Caro's debut film, Whale Rider, you've missed a great flick!)

Stand Up: A Campaign to End Sexual Harassment and Domestic Violence: an activist campaign inspired by the movie

Last year, the VA spent $4.3 billion on PTSD disability payments, a number which it hopes to reduce this year by revoking PTSD benefits for many veterans. According to Gene Gerard, this will be the final insult to soldiers who were asked to fight a war in Iraq on false premises.

VA Seeks to Punish Iraq War Veterans
    By Gene C. Gerard
    t r u t h o u t | Perspective

    Monday 17 October 2005

    The Veterans Affairs Department is currently reviewing approximately one-third of the cases of veterans who are receiving disability benefits for post-traumatic stress disorder (PTSD). After conducting an internal study, the VA believes that they were too lenient in deciding which soldiers were eligible for PTSD benefits. Last year, the VA spent $4.3 billion on PTSD disability payments, and the VA hopes to reduce these payments by revoking PTSD benefits for many veterans. This will be the final insult to soldiers who were asked to fight a war in Iraq on false premises.

    Owing to the war in Iraq and Afghanistan, the number of veterans receiving compensation for PTSD has increased by almost 80 percent in the last five years. By comparison, the number of veterans receiving compensation for all other types of disabilities increased by only 12 percent. Under the guidelines of the current review, soldiers who cannot prove that a specific incident, known as a "stressor," was sufficient to cause PTSD, their benefits will be revoked. Given the nature of warfare in Iraq and Afghanistan, it's not surprising that many returning soldiers are suffering from mental illness.

    In the July 2004 issue of the New England Journal of Medicine, Colonel Charles W. Hoge, MD, the chief of psychiatry at Walter Reed Army Institute, published a preliminary study of the effects of the war in Iraq and Afghanistan on military personnel. The study concluded that close to 20 percent of soldiers who served in Iraq and approximately 12 percent of those who served in Afghanistan returned home suffering from PTSD. The study found that there is a clear correlation between combat experience and the prevalence of PTSD. The study determined that "Rates of PTSD were significantly higher after combat duty in Iraq."

    Approximately 86 percent of soldiers in Iraq were involved in combat, as were 31 percent in Afghanistan. On average, soldiers engaged in two firefights for each tour of duty.

    The study indicated that 95 percent of soldiers had been shot at. And 56 percent of soldiers had killed an enemy combatant. An estimated 28 percent were directly responsible for the death of a civilian. Equally grim, 94 percent had seen or handled corpses or bodily remains. Additionally, 68 percent witnessed fellow soldiers being killed or seriously wounded.

    Although the number of soldiers suffering from PTSD is high, Dr. Hoge's study found that a majority of veterans are not seeking treatment. Only 40 percent of returning soldiers acknowledged that they need mental health care, and only 26 percent were actually receiving care. Therefore, the number of veterans approved for PTSD compensation by the VA is relatively small. Yet the VA believes that too many soldiers were approved for PTSD disability compensation and is now seeking to deny soldiers this benefit.

    The lack of pre-war intelligence also likely contributed to a rise in PTSD disability claims. Studies of the Vietnam War have indicated that when soldiers can't anticipate the nature and intensity of warfare that they ultimately encounter, they are psychologically unprepared, leading to PTSD in many instances. During the early phase of the war in Iraq, many soldiers were almost certainly unprepared for what they encountered.

    The Bush administration initially indicated that the war would be quick and easy. Vice President Cheney, only a few days after the invasion of Iraq, infamously stated that soldiers "will, in fact, be greeted as liberators." Ahmed Chalabi, a close advisor to the Bush administration prior to and immediately following the invasion said, "American troops will be greeted with flowers and candy" by the Iraqi people, and the administration repeated this many times. President Bush flew onto a US aircraft carrier in May 2003 and, while standing beneath a banner proclaiming "Mission Accomplished," announced that major combat operations had ended.

    It's easy to understand why the VA has seen an increase in soldiers seeking benefits due to post-traumatic stress disorder. What is difficult to comprehend is why the very agency responsible for meeting the needs of our veterans is now turning its back on them. Perhaps it's attributable to money. The Bush administration may be seeking to reduce compensation to soldiers for PTSD so that more money can be diverted to the ongoing war in Iraq.

    Or, perhaps this is simply a public relations issue. The effort to revoke PTSD benefits may be an attempt to assert that the war has not been that devastating. What is certain is that the very people asked to sacrifice their lives, if necessary, for the nation are now being punished for doing so.

An employer may not discharge or discriminate in any other manner against an employee who leaves the place of employment to participate in a general public emergency evacuation. Tex. Lab. Code Ann. sec. 22.002

An employee who suffers an adverse employment action because of a violation of this provision may recover lost wages and employment benefits. If the employee is discharged, he or she is entitled to reinstatement at the same or an equivalent position. Ch. 22.003.

Unfortunately, sometimes it takes a tragedy before we, as a nation, are prepared to address fundamental problems in our society. 

Such is the case with the discussions surrounding poverty, racism and classism that seem at the center of the horrific events we witnessed along the gulf coast this month.  While no one should seek to take advantage of the suffering of hundreds of thousands of Americans, it would be irresponsible of the progressive community, in this time of reflection and assessment, to not address the injustices of poverty and racism which, obviously, still plague our society. 

Indeed, because the media’s attention span is so short, it is incumbent upon all of us who care about economic justice and the dignity of the American worker to join in the chorus of those who are calling for a reexamination of our government’s role in making the American Dream a possibility for all her citizens.

Americans should be united in providing help to our most vulnerable.  Yet, too many politicians are pointing fingers, rather than lifting them to help.  Now, more than ever, it is time for a new kind of leadership in Washington, DC, leadership that is truly compassionate and forward-thinking. We deserve leaders that bring an honest and inclusive approach to solving problems and fulfilling their promises to work for a better America for everyone.

The United Steelworkers, building upon our long, proud history of fighting for workers and progressive causes, both on the job and in the political arena, encourage you to organize and make your voice heard in the streets, at city council meetings and in letters to local newspapers across this country.  

Security begins with social and economic justice. Freedom begins with equality and opportunity.  That’s why the USW Associate Member Program is pushing for higher working and living standards across the country, battling to increase the minimum wage in numerous states and fighting tirelessly to protect American jobs and the American worker.  But we need your continued support and that of your friends, co-workers and family through the USW Associate Member Program.

That’s why we’re asking you to take an active role in this important battle.  Push for living wage standards in your community, tell your elected officials that you support raising the minimum wage and write letters to your local newspapers demanding that the inequities of racism and poverty be addressed. This is a national struggle and you can make a difference. 

In the words of Margaret Mead, “Never doubt that a small, group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

There are a number of different ways we can reach out in our communities and affect change.  The United Steelworkers and its members have already donated $450,000 for the survivors of Hurricanes’ Rita and Katrina. If you’d like to contribute, please write a check for the amount payable to the Steelworkers Charitable and Educational Organization.

Please send checks to:

Secretary-Treasurer, United Steelworkers,
Five Gateway Center, Pittsburgh, PA 15222.

Questions? Call the Steelworkers Rapid Response Hurricane Relief Hotline toll free at: 1-866-203-4960

In Solidarity,

The Steelworkers' Fight Back 05 Team

From USW partner site, Workplace Fairness
For more information on your rights in the workplace, visit the Steelworkers' Workplace Rights Resource Center

As the nation reeled from the massive destruction caused by Hurricane Katrina, it was also newsworthy that the Chief Justice of the Supreme Court, William H. Rehnquist, passed away following a battle with thyroid cancer. John Roberts, having already been nominated to fill the seat of retiring Associate Justice Sandra Day O'Connor, was quickly nominated by President Bush for consideration as the new Chief Justice. Roberts' nomination battle became that much more critical, as the individual selected as the next Chief Justice will have the ability to mold the Court for the next few decades. Since Roberts was initially nominated, more about his likely views on employment and civil rights issues has come to light, and should be of key concern to the U.S. Senate when deciding whether to confirm him.

Although Chief Justice Rehnquist had been battling cancer for some time, he had not retired from the Court at the end of this year's Term as had been widely expected. Instead, Justice O'Connor announced her retirement, effective upon the confirmation of her successor. John Roberts was nominated as Justice O'Connor's replacement, and his confirmation hearings were initially scheduled to begin this week, once Congress returned from its August recess. Many were calling for the hearings to be postponed, due to Katrina, when the nation learned of the Chief Justice's passing. The President then quickly moved to announce his intention to nominate Roberts, who formerly clerked for the Chief Justice, for the highest slot on the Court. (See Austin Chronicle article.)

Prior to the investigation of Roberts' record when he was nominated for Justice O'Connor's slot, not that much was known about his views on employment issues. As a judge on the DC Circuit Court of Appeals, he has not yet had an opportunity to rule on many employment-related issues, and as a law firm partner, he could argue that he was representing the interests of his client in cases such as Toyota Motors v. Williams. Although there was speculation of course about how Roberts might rule in cases affecting workers, more information was clearly needed. (See blog entry of July 20, 2005.)

More light was shed on Roberts' views when memos dating from his days as legal counsel for the Reagan administration were released. Roberts wrote internal memos urging President Reagan not to support any form of the proposed Equal Rights Amendment, questioning "whether encouraging homemakers to become lawyers contributes to the common good." In 1983, Roberts criticized a report applauding state improvements in workplace sex discrimination. Ideas he criticized include a California requirement to consider affirmative action when laying off workers, and a California proposal to require equal pay to men and women in comparable state jobs. (See National Women's Law Center memo.) Roberts also proposed reining in the Equal Employment Opportunity Commission (EEOC), claiming its civil rights positions were "totally inconsistent'' with President Ronald W. Reagan's policies. (See Bloomberg article.)

Roberts disavowed some of his early civil rights views in last week's hearings. (See New York Times article.) However, many are unsatisfied with what they consider his evasive answers, and remain unconvinced that he will uphold civil rights protections. Today, Senate Minority Leader Harry Reid and Sen. Edward Kennedy announced that they will oppose the Roberts nomination, citing his civil rights views as key among their reasons for opposition. Sen. Reid stated that "It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections." (See Fox News article.) Sen. Kennedy said, in announcing his opposition to Roberts' nomination:

Based on the record available, there is clear and convincing evidence that Judge Roberts’ view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about.

(See Kennedy Floor Statement.)

In the few days left before Roberts' nomination reaches the Senate floor, Senators will be considering their position on the nomination, and will be heavily lobbied by groups on both sides urging alternatively confirmation or rejection. The hearings did little to alleviate significant concerns about Roberts' records on issues affecting American workers, so the question is whether issues central to workers will play a role in determining how Senators vote.

For Senators Kennedy and Reid, it is clear that those issues matter. It remains to be seen whether their colleagues will attach similar importance to Roberts' early hostility to civil rights issues, and what many consider his failure to sufficiently distance himself from those early views.

-Paula Brantner, Program Director
Workplace Fairness
www.workplacefairness.org

For More Information:

NELA's John Roberts page: http://www.nela.org/confirmingjustice.cfm (contains links to many Roberts resources and documents from other groups)

NELA's Letter to the Senate Judiciary Committee: http://www.nela.org/advocacy/docs/SCt_Roberts_LtrSJC.pdf (This letter urged the Judiciary Committee to ask Roberts specific questions relating to his employment and civil rights views.)

From USW partner site, Workplace Fairness
For more information on your rights in the workplace, visit the Steelworkers' Workplace Rights Resource Center

It's the time of year when it seems like everyone is getting in that last bit of vacation time while summer is still here. Parents are trying to get away with the kids before school starts. Congress is on recess. Even my own vacation partially explains the sparse blog postings as of late. But the champion when it comes to vacation time has to be our President, who is spending a whopping five weeks away from the White House at his ranch in Crawford, Texas. While the President may have been reelected in part due to his ability to relate to ordinary Americans, his lengthy vacation is one thing to which ordinary Americans, by and large, cannot relate.

As one commentator puts it: "August is the siesta month, when we shut down our brains, head on holiday, and spend money while doing nothing to earn it. We go back and forth between a deep desire to squeeze in every last moment of idle repose, and a vague sense of dread about what lies in store." (See Slate's The Mendoza Line.) No one questions the value of a vacation from work when it comes to recharging batteries, preventing burnout, increasing productivity, helping health, promoting familial bonds and increasing positive moods. (See Sun News article.) Sounds like something everyone could benefit from, right?

And few question that the rigors of the presidency demand some down time. As presidential workloads increase, experts say, so does the need for balance. "You need to take time to keep your own physical, mental, spiritual act together, or you are not going to be a good president or leader of anything," says Jim Bird, CEO of WorkLifeBalance.com. (See Christian Science Monitor article.)

However, in the U.S., there is no statutory requirement that workers receive any paid vacation time. This is in contrast to most industrialized nations. Five nations require a minimum of twenty-five paid days (five workweeks) each year: Austria, Denmark, France, Luxembourg, Sweden. Another 13 countries guarantee at least 20 days yearly, including the United Kingdom, Germany, Italy, Spain and the Netherlands. (See EPI Economic Snapshot.) Even countries hardly known for their labor standards, such as El Salvador, Indonesia and Mongolia, have all established a minimum of 10 to 15 days paid leave a year. (See Capital Times article.)

With the absence of any legally required vacation, it takes American workers years on the job to work their way up to longer vacation periods. U.S. workers employed for a year or more receive, on average, 8.9 days of vacation. After 10 years of employment workers receive just over three weeks of vacation. Vacation leave approaches four weeks after 25 years of service. Put this way, it takes an American worker 25 years to earn the same amount of vacation that is guaranteed by law in most European countries. (See EPI Economic Snapshot.)

However, when you're the President, you don't need any kind of legal protection: now that he has been re-elected, he can't be fired from his job for taking too much time off. In fact, the President recently earned the distinction of being the "most-rested" president in history (a title bestowed by Britain's Financial Times), when he surpassed Ronald Reagan's previous record of 335 days for presidential time spent at a vacation home. If President Bush keeps up his current pace for the rest of his presidency, he will have spent more than one year away from the White House during his tenure as president. (See Capital Times article.)

As the President has said about his current activities (including biking with Lance Armstrong and fishing with Idaho's governor), "I'm just kind of hanging loose." (See The Rebel Yell article.) Whatever your views about the war in Iraq and Cindy Sheehan's protest dogging the President as he vacations at his home in Crawford, Texas, it seems we can all agree that Americans need more opportunities to "hang loose," whether it be for five weeks, or even the minimum two weeks needed to really get away from it all.

While we don't expect a national campaign to hang loose will be at the top of Congress' (also MIA during the month of August) or the President's agenda any time soon, perhaps more employers can follow the lead of the president that many of them support, and voluntarily provide more vacation for their workers who so desperately need it.

-Paula Brantner, Program Director
Workplace Fairness
www.workplacefairness.org

From USW partner site, Workplace Fairness
For more information on your rights in the workplace, visit the Steelworkers' Workplace Rights Resource Center

Think that who you hang out with when you're off the job is not the boss's business? Think again, says the National Labor Relations Board (NLRB), in a recent 2-1 decision by the Republican majority which takes anti-fraternization policies much further than most employees would consider possible. The NLRB's recent decision upheld a policy which made it against the rules for Guardsmark's security guards to "fraternize on duty or off duty, date, or become overly friendly with the client's employees or with co-employees." While the policy was ostensibly enacted for safety and security purposes, its chilling effect goes much further.

Guardsmark, who calls itself "the leader in security services," added to its employee handbook the following provision:

While on duty you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.

Guardsmark claimed this provision was necessary "to provide safeguards so that security will not be compromised by interpersonal relationships either between Respondent’s fellow security guards or between Respondent’s security guards and clients’ employees."

The provision was used to punish a supervisor at San Francisco's Fairmont Hotel, Daniel Higgins, when it was charged that "he was leaving his post unattended and becoming too friendly with some of the other employees." (See The Desert Sun article.) This provision was challenged by the Service Employees International Union (SEIU), who argued that this kind of provision discouraged workers from exercising their right to "self-organization, to form, join, or assist labor organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..." as guaranteed by Section 7 of the National Labor Relations Act (NLRA).  

After all, if you can't get overly friendly with your fellow employees, or spend time with them away from the workplace, chances are good that you're not going to feel safe complaining about work to someone you don't know very well, and certainly aren't going to take the chance of talking about banding together to join a union. Security guards are often isolated from their fellow coworkers anyway -- often working in solitary assignments and odd hours -- and this type of policy doesn't help the situation.

Even the NLRB doesn't agree about what "fraternization" means. The majority says that "we believe that employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act." Personal entanglements --now that really defines it clearly. Where does friendship end and personal entanglement begin? Even as applied to dating, it becomes problematic: does the relationship have to assume a certain level of "seriousness" before it's a personal entanglement? Does one date count? If one party is "personally entangled" on an emotional level, but the other isn't, does that mean only one party is in violation of the policy? What about those who were personally entangled before the policy went into effect: does one of the two have to quit?

However, as the dissenter, Board member Wilma B. Liebman, astutely points out:

Here, a reasonable employee certainly could understand the Respondent’ rule to sweep much more broadly than prohibiting only personal entanglements with clients and coworkers. The rule already bars dating and becoming "overly friendly" with those individuals, so a reasonable employee might well conclude that the prohibition on fraternizing must apply to something else....The primary meaning of the term "fraternize," in turn, is "to associate in a brotherly manner," Webster’s New World Dictionary 555 (2d ed. 1984), and that kind of association is the essence of workplace solidarity.

(Guardmark, Member Liebman, dissenting in part.)

This case was brought under the NLRA, because that's one of the few potential remedies for these kinds of policies. However, regardless of whether it chills union activity or not (and it seems clear that it would), should employers really be in the business of chilling employee friendships?

Amy Joyce, workplace columnist for the Washington Post, points out that "The Gallup Organization has studied workplace friendships and says that those who have friends at work, with whom they socialize both in and out of the office, are more engaged than those who don't. Studies have also shown that having friends at work lowers turnover and increases safety." (See Washington Post article.) Joyce's article, "Undercover Friends," discusses many situations where so-called "fraternization" helps both the workplace and its workers, and asks, "Will the ruling have the opposite effect and actually hurt morale and make guards less likely to discuss issues and possibly find new ways to protect the buildings in which they are stationed?"

Harold Meyerson, Post columnist, works up even more outrage about the decision:

There's a word for the kind of employer-employee relationship that the NLRB has just sanctioned. It's "feudal." The brave new world that emerges from this ruling looks a lot like the bad old world where earls and dukes had the power to control the lives of their serfs -- not just when the serfs were out tilling the fields but when they retired in the evening to the comfort of their hovels. But then the Bill of Rights in America has never reached very far into the workplace. And now, the strictures on workers' rights within the workplace are being extended without.

(See Washington Post column.)

Let's hope that too many more employers don't decide to follow Guardsmark's lead, but what's the most frightening is that after the recent NLRB decision, they now have license to establish such restrictive policies. And if there's not much to be done about under the NLRA, then there's not much to be done about it period. Does Guardsmark really want its security workforce to be comprised of isolated loners? You wouldn't think so: we'll see if that so-called safety rationale really pans out.

--Paula Brantner, Program Director
Workplace Fairness

More Information:

Workplace Fairness: Short-Changed: Privacy: No More Secrets

American Rights at Work: Eye on the NLRB

AFL-CIO: News for Working Families