Employee Rights

Redistributing Work Hours

punching in The Obama Administration’s new overtime proposal is an important and long overdue reform, but those who see it primarily as a way to address stagnant wages are missing the point. If the rule works properly, the main benefit will come in the form of time rather than money.

Noam Scheiber, the new labor reporter for the New York Times, exhibited the misconception in a news analysis arguing that the proposal “falls well short of helping substantially increase middle-class wages.” The piece compounded the problem by quoting Sen. Chuck Schumer calling the step “the middle-class equivalent of raising the minimum wage.”

Enacted in 1938, the overtime provision of the Fair Labor Standards Act (FLSA) is designed to discourage employers from compelling workers to work excessive hours. The time-and-a-half provision is meant not as a wage bonus but rather as a penalty for firms that overwork their staffs rather than increasing the headcount.

Under pressure from business interests, Congress wrote language into the FLSA providing an exemption from the overtime provisions for executive, administrative and professional employees. The rationale was that such persons would be paid a salary rather than a hourly wage, and their compensation would be high enough to make some extra hours tolerable.

It was left to the Labor Department to define exactly which employees would be covered by the exemption. It chose to set criteria that referred mainly to job content but also set a compensation level below which overtime had to be paid regardless of the nature of the job.

That latter provision turned out to be essential. It would be all too easy for an employer to give a position superficial managerial or administrative responsibilities with the aim of making it exempt from overtime. The problem was that the wage cutoff was set too low, and revisions tended to be slow in coming. After the cutoff was raised to $155 a week in 1975, it took another 29 years before it was increased again.

In the meantime, employers did everything possible to shrink the portion of the workforce eligible for overtime pay. This was perhaps most common in the retail sector, where workers were given bogus titles such as assistant store manager while most of their responsibilities were not managerial or administrative in nature. Once they were off the overtime clock, it was profitable for the real bosses to work them long hours.

Obama’s proposal, which would raise the cutoff to $970 a week, did not come out of the blue. Groups such as the Economic Policy Institute and the National Employment Law Project have been campaigning on the issue for years.

There’s also been a battle going on in the courts. A slew of lawsuits have been brought against major retail companies for misclassifying people as overtime exempt. Earlier this year, for example, a federal judge approved a $30 million settlement of overtime claims brought by so-called managers at Publix Super Markets. Payless Shoesource has agreed to a $2.9 million settlement of similar allegations.

Dollar stores, which are obsessive in their cost-cutting efforts, have been the target of numerous overtime suits brought by purported managers. Dollar General paid $8.3 million to settle one such case.

The employer class is, of course, up in arms over the proposed new standard, making the usual foolish claims about job cuts and loss of freedom. The Washington Post quoted one chief executive as saying: “Everything in this proposed rule is anti-American work ethic and culture.”

That in a sense is true, if one acknowledges that our work culture is now one in which some people are forced to work excessive hours and others, especially in the sprawling retail and restaurant sectors, are kept in involuntary part-time status with unpredictable schedules and not enough hours to piece together a decent living.

A measure of the success of the new overtime rule will be the extent to which it rectifies this lopsided distribution of working hours.

Religion Inc.

Is Justice Samuel Alito really that clueless? During the 2010 State of the Union address, he nervously mouthed the words “not true” when President Obama warned that the Supreme Court’s Citizens United ruling would allow corporate special interests to dominate U.S. elections. A few days ago, Alito wrote an outrageous opinion in the Hobby Lobby case affirming the religious rights of corporations but insisting this would not do much other than prevent a few companies from having to include several kinds of birth control in their health insurance plans.

Alito’s claim about the narrow scope is already beginning to unravel. Although the written opinion suggested that only four types of contraception such as IUDs that religious zealots view as tantamount to abortion would be affected, the Court subsequently ordered lower courts to rehear cases in which employers sought to deny coverage for any form of birth control.

Business owners with other religious views contrary to federal policy will undoubtedly soon speak up. This is exactly what Justice Ginsburg warned about in her powerful dissent, calling Alito’s opinion “a decision of startling breadth” that enables “commercial enterprises, including corporations, along with partnerships and sole proprietorships, [to] opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Alito was apparently so shaken by Ginsburg’s accusation that he felt a need to deny it at length. The denial is not only unconvincing, it is clumsy and takes Alito into some strange territory for a supposed business-friendly conservative.

In their religious zeal, Alito and the other conservatives on the Court apparently forgot that corporations have been trying for the past century to depict themselves as totally apart from religious and moral concerns. Business enterprises are amoral institutions, laissez-faire proponents such as Milton Friedman repeatedly told us—they exist only to maximize their profit. It has often been corporate critics who have brought religious and moral issues into disputes over business practices.

Alito seems to embrace the notion of corporate social responsibility (CSR) when he writes (p.23):

Modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.

Alito even makes reference to growing acceptance of the benefit corporation, which he describes as “a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners” (p.24).

It’s unclear whether Alito sincerely believes in the validity of CSR initiatives or is simply using this comparison to try to make his assertion of corporate religious rights more palatable. Oddly, he describes as “unlikely” the possibility that a large publicly traded company would ever make a religious claim, even though such firms are among the biggest promoters of CSR.

Whatever Alito really thinks, his reference to CSR does not make the ruling any more convincing. CSR is already problematic to the extent that its practitioners try to use their supposedly high-minded voluntary initiatives to discourage more stringent and more enforceable government regulation. But at least these corporations are simply trying to influence government policymaking rather than asserting an absolute right to be exempt because of supposed religious convictions.

As much as Alito tries to deny it, his ruling has the potential to cause a great deal of mischief. A religious component can already be seen in the climate crisis denial camp; what will prevent companies from asserting that their beliefs prevent them from complying with environmental regulations? Is it that hard to imagine that business owners holding a scripture-based belief that women should be subservient to men may claim they should not be subject to anti-discrimination and equal pay laws?

Alito seems to be opening the door to such aggressive stances when he insists that “federal courts have no business addressing” the question of whether a religious claim by a corporation is reasonable (p.36). It’s true that, in general, government should not be passing judgment on matters of faith, but that principle falls apart when special interests try to use religion to undermine democratically adopted public policies. It’s even worse when those interests are employers asserting their beliefs at the expense of their workers.

The Supreme Court has done considerable damage by elevating the free speech rights of corporations; now it is compounding the sin by giving those corporations special religious rights as well.

A Great Place for Wage Theft

Restaurant giant Darden, which is being pressured by hedge funds to sell off both its Red Lobster and Olive Garden chains, got some good news recently when it appeared once again on Fortune magazine’s list of the 100 companies that are supposedly the best places to work.

That designation, for a company that has been the subject of numerous allegations of labor abuse, is even more puzzling than the idea that Darden would be better off without the outlets through which it grew into an $8 billion industry powerhouse.

For more than a decade, Darden has been accused by groups such as ROC United of using various means to shortchange its workers on their paychecks, a practice known as wage theft. In 2005 the company agreed to pay $9.5 million to more than 20,000 current and former servers at Red Lobster and Olive Garden outlets in California to settle a lawsuit claiming that the restaurants violated state labor regulations by preventing workers from taking required breaks and by requiring them to purchase and maintain their uniforms.

Three years later, Darden disclosed that it had paid $4 million to settle two class-action lawsuits alleging that it had violated California law in requiring servers and bartenders to make up for cash shortages at the end of their shifts. Also in 2008, Darden reported that it had paid $700,000 to settle another California suit claiming several types of wage and hour violations, including a failure to provide itemized wage statements and timely pay when an employee was terminated.

In 2011, following a U.S. Labor Department investigation that found workers were not being paid for all their hours, Darden agreed to pay $25,000 in back wages to 140 current and former servers at an Olive Garden in Mesquite, Texas. The company was also fined $30,800. That same year, the company consented to pay $27,000 in back pay and was fined $23,980 in connection with a similar federal investigation at a Red Lobster in Lubbock, Texas.

In the wake of the two Texas cases, suits were brought against Darden in several other states. For example, in early 2012 ROC United filed a class action case on behalf of Darden workers at another of the company’s chain, Capital Grille. For technical reasons, the action was later divided into separate actions in five jurisdictions (all are still pending).

An even larger legal challenge to the company came in September 2012, when a class action suit was filed in federal court in Miami on behalf of all current and former employees (back to 2009) at five of Darden’s chains. The 54 named plaintiffs in the case stated that the company did not pay them for the period between the beginning of their shifts and the time customers began to arrive, thereby forcing them to do prep work off the clock. Darden was also accused of failing to pay time-and-a-half for those working more than 40 hours per week and for improperly applying the lower subminimum wage for tipped workers when they were engaged in non-serving tasks.

The complaint in the case — which described the company as having “a steadfast, single minded focus on minimizing its labor costs” by arranging to have “as many tasks as possible performed by as few employees as possible” — also alleged that two of the named plaintiffs had suffered retaliation from management because of their participation in the case. Some 13,000 current and former Darden servers have joined the suit, which is pending.

The ROC United wage theft actions against Capital Grille also allege that the chain has engaged in a pattern of racial discrimination, including the denial of better-paid server and bartender jobs to non-white workers.

In 2009 the U.S. Equal Employment Opportunity Commission announced that Darden’s Bahama Breeze chain would pay $1.26 million to settle allegations that managers at its restaurant in Beachwood, Ohio had subjected 37 black workers to repeated overt racial harassment. In addition to the monetary relief, the chain signed a three-year consent decree requiring it to improve its anti-discrimination practices throughout the country.

In September 2013 the EEOC filed suit against Red Lobster, alleging that female workers at its restaurant in Salisbury, Maryland have been subjected to “pervasive sexual harassment.” According to the agency, the harassment was committed by a manager, whose superior was said to have failed to take prompt action on the matter despite complaints from at least one of the affected workers.

Darden has also sought to lower its labor costs by becoming more active in the public policy arena. Until 2007 Darden spent less than $250,000 a year on federal lobbying. Beginning in 2008 that amount jumped to well over $1 million annually.

The company is a prominent participant in the National Restaurant Association (NRA), which promotes policies that enhance the bottom line of chains such as Darden. It has opposed living wage initiatives, worked to keep the minimum wage for tipped workers at $2.13 an hour (where it has remained since 1991) and resisted efforts by labor groups to enact mandatory paid sick days, often by promoting state laws that pre-empt local ordinances on the issue. Darden is reported to have helped write the pre-emption bill in Florida.

All of this somehow escaped the attention of Fortune and the organization, the Great Place to Work Institute, which compiles the list. Or perhaps the Institute doesn’t worry about real working conditions. A 2011 investigative report raised serious questions about its methodology, suggesting it is mostly interested in selling consulting services to the companies it is rating. As a recent Alternet piece notes, the lack of an arm’s-length relationship with those companies is also seen in the fact that Darden CEO Clarence Otis has been a speaker at Institute events.

The designation as a “great place to work” is featured by Darden on its website, but the dubious honor cannot change the company’s dismal labor track record.

Note: This piece draws from my new Corporate Rap Sheet on Darden, which can be found here.

Where Healthcare’s Bare Bones are Buried

junk_insurance President Obama may very well have blundered in leaving out the nuances when he pledged during the Congressional deliberations over the Affordable Care Act that “if you like what you have, you can keep it.” Yet it would have been difficult to anticipate in 2009 that only a few years later the opponents of the ACA would succeed in creating an atmosphere in which much of the public has been made to believe that the government can do nothing right and the private sector nothing wrong when it comes to healthcare reform.

It is amazing how little attention is being paid to the insurance companies whose cancellation notices are what created the current furor over Obama’s supposed betrayal. These companies, with the encouragement of penny-pinching employers, created the substandard plans that must now be eliminated to comply with the minimum coverage provisions of the ACA.

One of the original culprits was Aetna, which in 1999—not long after merging with the controversial HMO pioneer U.S. Healthcare, introduced one of the first bare-bones plans under the name Affordable HealthChoices. The plan, put forth as way to reduce the ranks of the uninsured, was rolled out with the support of groups such as the U.S. Chamber of Commerce and the National Federation of Independent Businesses, which were eager to have an alternative to greater government involvement in healthcare coverage.

Affordable HealthChoices was indeed more affordable than conventional insurance, but that was because it was full of holes. At the time of Aetna’s announcement, the Wall Street Journal (5/4/1999) quoted consumer advocate Ron Pollack of Families USA as saying: “The bottom line for anybody who buys [this plan] is, ‘Don’t get sick,’ because if you get sick you are going to wind up with enormous bills.” Some states barred Aetna from selling the plans.

Another proponent of cut-rate coverage was Wal-Mart, which in the early 2000s, was putting its workers in plans with deductibles that were far above the norm and which excluded many kinds of preventive care. In many cases, the plans did not pay for any treatment of pre-existing conditions during the first year of coverage (Wall Street Journal, 9/30/2003). These provisions, along with premium costs that were difficult for many of the company’s low-wage workers to handle, prompted many Wal-Mart employees to turn to taxpayer-funded programs such as Medicaid. Nonetheless, Wal-Mart touted its high-deductible approach as a model for other employers.

Unfortunately, other companies followed Wal-Mart’s lead. By 2006 there were estimates that nearly one million people had enrolled in what were often called mini-medical plans, while millions more were in plans with more extensive benefits but high deductibles. Other major insurers such as WellPoint, UnitedHealth Group, Cigna and Coventry (now owned by Aetna) jumped into the market to sell what Consumer Reports has called “junk insurance.”

These companies targeted their bare-bones offerings not only at parsimonious companies but also at those with no employer coverage who turned to the individual insurance market, especially younger people more inclined to take a chance on getting by with catastrophic benefits.

Mini-meds contributed to the epidemic of bankruptcies among people with serious health conditions and helped drive home the reality that underinsurance was becoming as serious an issue as those who lacked coverage entirely.

This threat was highlighted by Democrats on the Senate Commerce Committee, led by Jay Rockefeller of West Virginia, who held a hearing in late 2010 entitled “Are Mini Med Policies Really Health Insurance?” Sen. Rockefeller took special aim at the mini med offered by McDonald’s, which capped benefits at $2,000 per year. At the hearing several Aetna customers described how they were covered for only a small portion of their expenses when they had major health problems. For example, a woman who had to go to the emergency room when she lost feeling in one of her arms and ran up more than $16,000 in bills received only $500 in coverage from Aetna.

The ACA was designed to reduce the number of people in bare-bones plans, but the law did not call for their complete elimination. Insurers can no longer cap the dollar value of annual benefits, but strange as it sounds, larger employers can offer low-cost plans that exclude categories of coverage such as hospitalization and still qualify under the new law. In other words, the real problem may be that not enough policies are being cancelled.

Whatever falsity was involved in President Obama’s pledge does not begin to compare with the deception practiced by insurance companies and miserly employers when they make holders of bare bones policies think that they have something that deserves to be called coverage.

Note: This piece draws from my new Corporate Rap Sheet on Aetna, which can be found here.

Wal-Mart’s Other Sins

The job actions taking place at many Wal-Mart locations around the United States have brought new attention to the abysmal labor practices of the country’s largest private employer. More than any other company, Wal-Mart depends on low wages, meager benefits, overtime abuses and gender discrimination to keep its labor costs artificially low while quashing any efforts by workers to rectify those conditions.

Two weeks ago, I used this blog to recount Wal-Mart’s labor and employment track record. Here I want to remind readers of some of the company’s many sins outside the workplace, using information I assembled for the new 5,000-word Wal-Mart entry in my Corporate Rap Sheets series.

Corruption. Wal-Mart doesn’t seem to mind its hardline reputation on personnel matters, but it has tried to otherwise paint itself as a squeaky-clean operation. That image was shattered last spring, when the New York Times published an 8,000-word front-page exposé about moves by top management to thwart and ultimately shelve an investigation of Foreign Corrupt Practices Act violations, focusing on extensive bribes paid by lower-level company officials as part of an effort to increase Wal-Mart’s market share in Mexico.

That story made a huge splash and reportedly undermined the company’s urban expansion efforts. A major public pension fund, the California State Teachers’ Retirement System, sued the company for breach of fiduciary duty in connection with the bribery scandal. It and other institutional investors showed their discontent with top management by opposing the official slate of directors at Wal-Mart’s annual meeting. About 12 percent of the shares outstanding were voted against the slate, an unprecedented level of dissent by the company’s previously quiescent shareholders. The company, apparently still trying to deal with the fallout, has just announced an overhaul of its compliance department.

State income tax avoidance. In 2007 the Wall Street Journal published a front-page story revealing that Wal-Mart was using a real estate gimmick to avoid paying many millions of dollars in state corporate income taxes each year. It was doing this by putting many of its stores under the ownership of a real estate investment trust (REIT) controlled by the company. The stores would pay rent to the captive REIT and deduct those payments as a business expense.

This trick, essentially paying rent to itself, reduced the company’s taxable income and thus lowered its state tax bill (the REIT was structured so its income wasn’t taxed by any state). A report by Citizens for Tax Justice estimated that Wal-Mart had thereby avoided some $2.3 billion in state income tax payments between 1999 and 2005–an average of more than $300 million a year.

Local property tax avoidance. A 2007 report by my colleagues and me at Good Jobs First found that Wal-Mart has sought to reduce its property tax payments by frequently and aggressively challenging the assessed value attached to its U.S. stores and distribution centers by local officials. The report examined a 10 percent random sample of the stores and found that such challenges had been filed for about one-third of them; an examination of all of the distribution centers found challenges at 40 percent, even though many of the latter had been granted property tax abatements when they were built.

Sales tax “skimming.” In a 2008 report by Good Jobs First entitled Skimming the Sales Tax, we found that Wal-Mart was receiving an estimated $60 million a year as a result of the little-known practice in some states of compensating retailers for collecting sales taxes and calculating the amount of that compensation based on total sales. This, in addition to the estimated $130 million in sales-tax-based economic development subsidies, means that Wal-Mart is depriving hard-pressed state and local governments of at least $73 million each year. This is just a small part of the more than $1.2 billion in state and local subsidies that Good Jobs First has documented on our website Wal-Mart Subsidy Watch.

Environmental violations. Wal-Mart has tried very hard in recent years to depict itself as a pioneer of sustainability by wide-ranging initiatives with regard to energy efficiency and the addition of organic foods and other green products to its shelves. Wal-Mart is largely silent about the environmental impact of the millions of customers who in most cases must still drive to the company’s retail outlets. It also wants us to forget that the company itself has had its share of environmental violations. For example, in 2004 the U.S. Department of Justice and the Environmental Protection Agency announced that Wal-Mart would pay a $3.1 million civil penalty and take remedial action to resolve alleged violations of the Clean Water Act in connection with storm water runoff from two dozen company construction sites in nine states. The following year, the company agreed to pay $1.15 million to the state of Connecticut to settle a suit alleging that it had allowed rain water to carry fertilizer, pesticides and other harmful substances stored outside its retail outlets into rivers and streams. It also signed a consent decree with the EPA to resolve charges relating to diesel truck idling at its facilities.

Undocumented Workers. When talking about Wal-Mart it is difficult to avoid the workplace entirely. Aside from its mistreatment of its own employees, the company takes advantage of exploited contract workers. For example, in 2003 a federal racketeering suit was filed against Wal-Mart by lawyers seeking to represent thousands of janitors who cleaned company stores and were reported to be working seven days a week and not receiving overtime pay. The filing took place 18 days after federal agents raided 60 Wal-Mart stores in 21 states to round up about 250 janitors described as undocumented aliens. In 2005 Wal-Mart agreed to pay $11 million to settle federal immigration charges. Documents later emerged suggesting that Wal-Mart executives knew that the company’s cleaning contractors were using undocumented immigrants.

“Dead Peasant” Insurance. Wal-Mart has not only worked people to death but also continued exploiting them after their demise. The mega-retailer is one of the large companies that engaged in the repugnant practice of secretly taking out life insurance on low-paid employees and making itself the beneficiary. The polite term for this is corporate-owned life insurance, though critics have labeled it “janitor’s insurance” or “dead peasant insurance.” In 2004 Wal-Mart settled one case brought in Houston for an undisclosed amount. Two years later it agreed to pay $5.1 million for a class action brought by the estates of former employees in Oklahoma, and in 2011 the company agreed to pay just over $2 million in a class-action suit filed in Florida.

The list could go on. In fact, it is difficult to find a form of corporate misconduct Wal-Mart has not exhibited. Yet it is probably the labor arena that counts the most in determining whether the company will be reined in. Support your local Wal-Mart “associates” in their efforts to stand up to the bully of Bentonville.

Standing Up to the Bully of Bentonville

The spreading job actions by Wal-Mart workers around the country, while still involving modest numbers, come across as a kind of catharsis. They inspire the same uplifting emotion as those movie scenes in which a long-suffering victim of bullying finally fights back against the tormentor.

Wal-Mart, probably more than any other large corporation, deserves the title of bully. For decades it has demonstrated utter contempt for the rights of its employees to act in concert to improve their conditions of work, which are in serious need of amelioration. It rules over a vast army of underpaid “associates” who in many cases are involuntarily limited to part-time status and thus denied even the meager benefits provided to full-timers, forcing them, with the cynical encouragement of management, to apply for taxpayer funded health coverage such as Medicaid that is not meant for employees of a $460 billion corporation.

Such impacts are not limited to those actually on Wal-Mart’s payroll. Since it is by far the largest U.S. private-sector employer, Wal-Mart’s abominable labor practices have set an example that makes it easier for many other employers to commit similar sins.

In the hope that we are indeed seeing a major turning point in the relationship between the giant retailers and its workforce, it is worth looking back at the company’s record to recall just how bad its behavior has been.

While some have sought to romanticize founder Sam Walton and pin the blame for the company’s retrograde policies on his successors, the exploitative approach was there from the start. As Bob Ortega points out in his 1998 book In Sam We Trust, Wal-Mart Sam Walton deliberately used superficial forms of paternalism to gain the loyalty of his workers while keeping labor costs at rock bottom. “We really didn’t do much for the clerks except pay them an hourly wage,” Walton wrote in his autobiography, “and I guess that wage was as little as we could get by with at the time.”

When Walton learned in the 1970s that some of his workers were talking about unionization, he did not try to address their concerns. Instead, he brought in a union-busting consultant named John E. Tate, who devised the policy of uncompromising resistance that would characterize Wal-Mart’s labor relations posture for decades to follow. That applied not only at the company’s stores, but also at its large network of distribution centers. For example, after nearly 50 percent of workers at a warehouse in Searcy, Arkansas signed cards in support of Teamsters representation in the early 1980s, Tate and his staff used the run-up to the election to scare the workforce into ultimately voting more than three-to-one against the union.

This scenario would play out again and again, both in the United States and Canada. For example, in 1997 the Ontario Labor Relations Board ruled that Wal-Mart had violated Canadian law by intimidating workers in the period preceding a representation election involving the United Steelworkers union. As a result, the board certified the Steelworkers, even though a majority of workers had voted against the union. The company, however, simply refused to bargain with the union.

When Wal-Mart used the same intimidation tactics during a 1997 election at one of its stores in Wisconsin, the National Labor Relations Board criticized the company but did not take the same sort of action as its Ontario counterpart. Later in 1997, exasperated United Mine Workers officials decided to call off an organizing drive at a Wal-Mart in Fairfield, Alabama less than 24 hours before the representation was scheduled to take place.

In 2000 a small group of courageous meatcutters at a Wal-Mart Supercenter in Jacksonville, Texas voted for representation by the United Food and Commercial Workers (UFCW). Within two weeks, the company announced that it was shutting down the meatcutting operations at that store and at more than 175 more in six states. The NLRB later ruled that the company had violated federal labor law by refusing to discuss the closing with the workers who had chosen union representation.

In 2001 the UFCW said it was launching a national organizing drive at Wal-Mart, but it focused on a few areas such as Las Vegas, where it engaged in a fierce battle with a slew of anti-union specialists flown in from corporate headquarters in Bentonville, Arkansas. Years later, the NLRB found that the company had engaged in various unfair labor practices, but by then the organizing effort had fizzled out. Looking back on the situation, the Las Vegas Sun published an article headlined WAL-MART BREAKS THE LAW, GETS PUNISHED, WINS ANYWAY.

While the UFCW largely turned away from individual store organizing in the United States, it continued the effort in Canada, on the assumption that the legal environment would be more conducive there. Yet Wal-Mart continued to run roughshod over Canadian law as well.

When workers at a store voted for representation, Wal-Mart simply refused to bargain with the union. If it was forced to do so, it turned to the same tactic it employed in Texas: shutting down the store or department where workers had asserted their desire for collective bargaining, pretending that the step was being taken for economic reasons.

After such a move in 2005 involving a store in Jonquiere, Quebec, Wal-Mart CEO Lee Scott defended the action in an interview with the Washington Post, saying that he “saw no upside to the higher labor costs” that union representation would have brought and that he “refused to cede ground to the union for the sake of being ‘altruistic.’”

That, in a nutshell, is Wal-Mart’s view of the world—that its desire to keep costs, especially those relating to labor, at the absolute minimum is all that matters. Any measures in furtherance of that goal are justified.

Along with fighting unions tooth and nail, the religion of cost minimization led to other practices that made life hellish for the company’s workforce. This included the systematic use of wage theft to cheat workers out of overtime pay as well as gender and racial discrimination. Over the past decade, the company has paid hundreds of millions of dollars to settle lawsuits over wage and hour violations. In 2005 it paid $11 million to settle federal charges related to the illegal use of undocumented immigrants—who were found to be working some 56 hours a week—to clean its stores. And Wal-Mart would have paid much more in damages for sex discrimination if the U.S. Supreme Court had not come to its rescue and derailed a massive class action suit (though other more limited suits took its place).

Wal-Mart’s employment practices have been so egregious that they go beyond regulatory infractions and enter the realm of human rights abuses. It’s thus no surprise that Human Rights Watch, which typically analyzes atrocities in dictatorial governments, once published a report concluding Wal-Mart violated the right of its workers to freedom of association.

So here’s hoping that the freedom fighters of the Wal-Mart workforce succeed in fully taming the bully of Bentonville.

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New in CORPORATE RAP SHEETS: Dossiers on water villains Nestlé and Coca-Cola Company.

The Risks of Being Employed

For those out of work for an extended period, unemployment can feel like a slow death.

Perhaps the only thing worse is the rapid death or serious injury experienced by many of those who have jobs but are forced to toil in unsafe conditions. As the ongoing economic crisis makes it difficult for workers to resist speed-ups and the hazards that go along with them, workplace accidents continue to mount. More than a dozen people are killed on the job each day.

New evidence of employer abuse comes in the latest statistics for the Occupational Safety and Health Administrations’ Severe Violator Enforcement Program (SVEP). According to the August 1 issue of Bloomberg BNA’s Labor Relations Week, the number of workplaces that have egregiously bad safety records has doubled in the past year, reaching 330 establishments.

OSHA created the SVEP in 2010 in an effort to focus attention on those employers that expose their workers to the most dangerous conditions, as indicated by the occurrence of serious accidents and citations for significant violations of safety and health standards. This is a laudable initiative, but it is likely that OSHA’s list includes only a small fraction of the corporate malefactors.

One of the companies missing from the compilation is BP, with which OSHA recently reached a $13 million settlement relating to the remaining unresolved violations at the company’s notorious Texas City refinery. BP previously paid more than $70 million in connection with hundreds of violations at the facility, where 15 workers were killed and more than 170 injured in a 2005 explosion (photo).

BP’s payments are far from the norm. In fact, the 2012 edition of the AFL-CIO’s overview of safety and health practices concludes that typical penalties—which after a recent increase still average only $2,100 for serious violations cited by OSHA and only $942 for those brought by state agencies—are too low to serve as a real deterrent to employer negligence.

Most of the firms on the SVEP list are smaller companies, with the largest number in the construction sector. One larger corporation is Cooper Tire & Rubber. In November 2010 Cooper was cited by OSHA for 10 violations for failing to provide adequate protection from hazardous chemicals at its plant in Findlay, Ohio. The following June, Cooper was cited for similar violations at its plant in Tupelo, Mississippi.

Failure to provide a safe work environment is not the only way that Cooper mistreats its workers. The tire maker is also among the large employers that have used the recession as a pretext for taking a hard line on collective bargaining. Last November, Cooper locked out workers in Findlay represented by the Steelworkers union after they rejected a contract offer from the profitable firm that eliminated wage guarantees and increased healthcare premiums. Back in 2008, when Cooper was losing money, the union agreed to $30 million in concessions that helped it survive. The lockout ended in February after workers approved a somewhat less onerous offer.

Cooper’s strategy is similar to that being employed by Caterpillar, which despite enjoying record profits, is seeking deep concessions from its union workers. In May more than 750 workers at Cat’s plant in Joliet, Illinois, took what is a rare step these days—they went on strike. They were willing to take the risk in the face of a company proposal to freeze wages for six years for workers with more seniority and to set wage rates for newer employees according to labor market conditions rather than collective bargaining. There appears to be no end in sight for the walkout.

Long-term unemployment can take a terrible toll on families, but many of those with jobs go to work each day facing risks to their life or their livelihood. The recession, intensified by corporate disregard for workplace safety and labor laws, weighs heavy on all of the 99%.

Fighting Unions in Bizarro World

bob-king — UAW President Bob King (left)

Some right-wingers in Congress appear to be envious of their state counterparts who have been attacking labor rights in legislatures across the country.

They were given an opportunity to engage in some union-bashing of their own at a recent hearing of the House subcommittee on Health, Employment, Labor and Pensions, known as HELP.

The Right is already up in arms about a National Labor Relations Board complaint charging Boeing with shifting work from its unionized operations in Washington State to union-unfriendly South Carolina to retaliate against worker activism. Now HELP chair Phil Roe of Tennessee is accusing the Board of making it easier for unions to use corporate campaign tactics against employers.

Roe and other panel Republicans seem to be living in a parallel universe in which large numbers of companies are forced to their knees by ruthless corporate campaigns, and workers suffer from intimidation not from anti-union employers but from labor thugs who will stop at nothing in their organizing efforts.

The depiction of this bizarro world was aided by the choice of witnesses at the hearing. There were, of course, no union representatives. Instead, the panel included the president of a janitorial company in Indiana that had been targeted by the Service Employees International Union; a contractor from New Mexico representing the anti-union Associated Builders and Contractors; and a partner in the law firm of Morgan, Lewis & Bockius, which is infamous for its work in opposition to organizing drives.

The only shred of legitimacy came from the one other witness—Catherine Fisk, a law professor from the University of California-Irvine—whose testimony documented the legal justification for the tactics that make up corporate campaigns. But she was mainly ignored by the subcommittee Republicans, who spent most of their time lavishing praise on the two business owners, especially the janitorial executive, David Bego, who has self-published a book about his struggle with the SEIU entitled THE DEVIL AT MY DOORSTEP.

Excerpts from the book on the web begin as follows: “It was a nasty, ugly, three-year, million-dollar war I did not ask for, but had to win. Otherwise, the business I loved would be infiltrated by a scheming labor union determined to undermine employee privacy rights and destroy my version of the American Dream.” Bego also pursued his dream by campaigning aggressively against the Employee Free Choice Act.

Attacks on corporate campaigns have surfaced before in Congress from time to time. These go nowhere, because any restrictions would inevitably violate the First Amendment and the National Labor Relations Act. The real counter-offensive comes in the courts, where large companies such as Smithfield Foods, Wackenhut and Cintas have filed racketeering lawsuits to harass unions engaged in such campaigns.

Apart from the Boeing-NLRB controversy, which has little to do with corporate campaigns, it is curious that a new foray against this union tool would occur now. Unfortunately, there has not been an explosion of aggressive organizing drives, and union density in the private sector is dwindling.

But perhaps Rep. Roe is concerned about what may be coming next in his home state. Roe’s district is not far from Chattanooga, where Volkswagen recently opened a $1 billion auto assembly plant. The workers there currently have no union protection, but that could change. The United Auto Workers has announced a new effort to organize the foreign auto plants clustered in the southeast, and the union’s new president Bob King vows it will be much more vigorous than past initiatives.

The UAW has not indicated which producer will be targeted first, but VW is probably a leading candidate. The German company recently shook up the auto world by revealing that it will keep its labor costs in Chattanooga far below not only those of its Detroit rivals but also those of U.S. plants run by Japanese competitors such as Toyota and Honda. With wage and benefit offerings at rock-bottom level, VW workers might very well be receptive to what the UAW has to offer.

A successful union organizing drive in eastern Tennessee would be a nightmare for the likes of Phil Roe. Fortunately, there is probably little he can do to prevent that possibility.

Targeting Target

The news of a union organizing drive at a group of Target Corporation stores in the New York City area raises the tantalizing possibility that the master of cheap chic may finally be knocked off its pedestal.

For years, Target has used its stylish image to obscure the fact that many of its employment and other practices are not significantly different from those of its scandal-ridden rival, Wal-Mart. It’s even managed to get itself included on a list of the “world’s most ethical corporations.”

Target’s stores, like those of Wal-Mart’s U.S. operations, are entirely non-union, and the company intends to keep them that way. The New York Times account of the organizing drive has Jim Rowader, Target’s vice president for labor relations, spouting the usual corporate rhetoric about how a union (the UFCW) would undermine the supposed trust that the company has built up with its workers. BNA’s Labor Relations Week (subscription-only) reports that Target is subjecting workers to captive meetings “conducted by store management in an attempt to dissuade workers from seeking union representation.”

Since no representation elections have been held yet, it is unclear whether Target will follow the lead of Wal-Mart in eliminating the jobs of those who dare to vote in favor of a union.

Target does not have a reputation quite as abhorrent as that of Wal-Mart when it comes to other employment practices, but neither is its record untarnished. It has been accused of subjecting its largely part-time workforce to the same abuses—inadequate wages, restrictions on health coverage, overtime violations, etc.—seen among other big-box retailers. Though not as often as Wal-Mart, Target has shown up on lists prepared by state governments of the employers with the most workers or their dependents receiving taxpayer-funded healthcare benefits. Target has fought against living wage campaigns, most notably in Chicago in 2006, when it threatened to cancel plans for two new stores in the city unless Mayor Richard Daley vetoed a wage ordinance (which he did).

Target has also faced accusations relating to the treatment of minority applicants and employees. In 2007 the company paid a total of more than $1.2 million to settle cases brought by the U.S. Equal Employment Opportunity Commission involving alleged racial discrimination in hiring in Wisconsin and a racially hostile environment in Pennsylvania.

There have been controversies involving the treatment of workers by Target suppliers and contractors, as well. In 2002 Target was one of a group of retailers that together paid $20 million to settle class-action lawsuits charging them with permitting sweatshop conditions at factories run by their suppliers in Saipan, part of the U.S. Commonwealth of the Northern Mariana Islands in the Pacific. A 2006 report by SOMO, a Dutch research center on transnational corporations, documented other instances in which Target garment suppliers were reported to be abusing workers and the retailer did little in response.

Target has a history of hiring janitorial contractors for its U.S. stores that tend to engage in rampant wage theft. In 2004 one such contractor, Global Building Services, paid $1.9 million to settle an overtime-violation case brought by the federal government on behalf of immigrant workers. In 2009 another Target cleaning contractor, Prestige Maintenance USA, settled an overtime lawsuit for up to $3.8 million.

Labor practices are not the only area in which Target’s accountability record falls short. Earlier this year, the company had to pay $22.5 million to settle civil charges that its operations throughout California had violated laws relating to the dumping of hazardous wastes. Target has had a good record on gay rights, though last year the company found itself at the center of a controversy after it was revealed to have contributed to a business PAC which in turn contributed to a gubernatorial candidate in Minnesota who campaigned against gay marriage (among other reactionary positions). Target later apologized.

And then there’s the matter of subsidies. Like Wal-Mart, Target has extracted lucrative tax breaks and other forms of financial assistance from many of the communities where it has built stores or distribution centers. One of its more audacious efforts was a proposal for a $1.7 billion mixed-use project in the Minneapolis suburb of Brooklyn Park, for which Target wanted more than $20 million in property tax abatements and a public contribution of $60 million for infrastructure costs. Despite seeking all this taxpayer assistance, Target demanded a waiver from the city’s living-wage policy for many contract and part-time workers who would be employed at the site.

Perhaps the best thing that can be said about Target, aside from its style, is that it is much smaller than Wal-Mart. Its total revenues are only about one-sixth of the worldwide sales (and less than one-quarter of U.S. sales) of the Bentonville behemoth. Target’s workforce of 355,000, all in the United States, is dwarfed by Wal-Mart’s domestic headcount of 1.4 million and another 700,000 abroad. Target thus has a much smaller impact on overall labor practices and the global supply chain.

What impact it does have is not salubrious. Now that it is facing some union pressure, let’s hope Target breaks from Wal-Mart and decides that it is makes sense to treat its workers with as much respect as its customers.

NOTE: Speaking of subsidies, the Subsidy Tracker database I created for Good Jobs First has just been expanded and now has more than 65,000 entries covering 154 subsidy programs in 37 states.

Boeing’s Flight Plan

Now that Osama bin Laden has been eliminated, the greatest threat to the American Way of Life, a growing chorus of right-wingers seems to believe, is a federal agency that has been around since 1935.

That agency is the National Labor Relations Board, and its atrocity is to have challenged the absolute right of a corporation to invest its money where it sees fit.

The corporation in question is Boeing, which was recently accused by the NLRB of having violated federal labor law by locating a new production line for its Dreamliner aircraft in union-unfriendly South Carolina rather than Washington State, the company’s traditional manufacturing base. The Board’s acting general counsel, responding favorably to an unfair labor practice allegation filed by the International Association of Machinists, charged that Boeing’s siting decision was a retaliatory action against the union.

If the Board complaint prevails, “no company will be safe from the NLRB stepping in to second-guess its business decisions on where to expand or whom to hire,” thundered an official from the National Association of Manufacturers. Equally hysterical statements are being made by conservative public officials and commentators, who worry that the case could imperil job growth in “right-to-work” states. Some Republican Senators are touting a Right to Work Protection Act.

Boeing, meanwhile, continues to insist that its embrace of the Palmetto State was not driven by union-avoidance. Its CEO Jim McNerney just published an op-ed in the Wall Street Journal headlined BOEING IS PRO-GROWTH, NOT ANTI-UNION. While it is refreshing to see a major U.S. corporation disavow anti-union animus, McNerney’s statements are disingenuous. This begins with some simple facts.

McNerney asserts that the portion of Boeing’s U.S. workforce represented by unions is “about 40%…a ratio unchanged since 2003.” I hope McNerney is not involving in making any sensitive calculations about the company’s aircraft, because he seems to be challenged when it comes to numerical accuracy.

According to Boeing’s 10-K annual filing with the SEC for last year, 34 percent of its total workforce of 160,500 was represented through major U.S. collective bargaining agreements with the Machinists, SPEEA and the UAW. Other unions represent much of Boeing’s limited foreign workforce (in Canada and Australia), so there is no way the U.S. union percentage can be 40 percent, unless McNerney thinks you can round up from 34.

At the end of 2000, about 48 percent of Boeing’s U.S. workforce was represented by unions. The figure then began to slide—as a result of layoffs, outsourcing and union decertifications that must have been encouraged at least implicitly by management. The number of union-protected Boeing workers in the United States at the end of last year was more than 38,000 lower than a decade earlier.

McNerney’s description of how Boeing ended up in South Carolina is also highly misleading. He claims the decision resulted from an objective assessment of various factors in several states.

The fact is that Boeing set the stage for the move over a long period of time. South Carolina was one of the states considered in 2003 for the first Dreamliner production facility before the company bullied the Washington State legislature into enacting a $3 billion package of corporate tax breaks as the price for staying put.

South Carolina’s consolation prize was that in 2004 Vought Aircraft, a key supplier of the fuselage and other components of the Dreamliner, agreed to build a $560 million manufacturing complex at Charleston International Airport. In 2005 a Boeing executive told a public meeting in Charleston that the Vought operation could receive more Dreamliner work in the future (Post and Courier, 7/19/05). Despite the open anti-union stance of Vought management, the company’s South Carolina workers voted in 2007 to be represented to the Machinists.

Starting in 2008, Boeing bought out Vought’s interests in the Charleston operations. In September 2009 the Machinists union was decertified amid persistent rumors that Boeing would choose Charleston as the location for the second Dreamliner assembly line. In October 2009 Boeing made it official, announcing it would spend at least $750 million on the new production line.

During these years, Boeing executives made a series of public and private statements—some of which are cited in the NLRB complaint—expressing their frustration at having to deal with the assertive union workforce in Washington. Consequently, it was obvious to everyone that the Charleston announcement was a rebuff to those workers. BusinessWeek’s story about the move, headlined BOEING’S FLIGHT FROM UNION LABOR, stated that McNerney was “signaling the lengths he’s willing to go to loosen the union’s chokehold on the company.”

The need for the Charleston facility to remain non-union has been made crystal clear by South Carolina Gov. Nikki Haley, who chose Catherine Templeton, an attorney specializing in “union avoidance,” to run the state Department of Labor, Licensing and Regulation. “I think we’re going to have a union fight as we go forward with Boeing,” Haley declared in announcing Templeton’s nomination. “We’re going to fight the unions and I needed a partner to help me do it.”

The comments prompted the Machinists to file suit demanding that Haley and Templeton remain neutral in union matters. Haley, instead, has been a leader of the pack attacking the NLRB.

Despite all the righteous indignation being expressed by that pack, there is nothing remarkable or unprecedented about the Board’s complaint, as the Acting General Counsel has taken pains to point out.

What is remarkable is that so many public figures have forgotten that the National Labor Relations Act, which affirms the right of workers to act collectively to protect their interests in the workplace, is official U.S. policy on labor relations, not the “right to work” laws enacted in 22 states to weaken those activities.

Critics of the NLRB complaint incorrectly claim it will lead to the collapse of “right to work.” If only that were true. It will take a lot more—including a huge boost in labor activism—to restore the full rights of workers throughout the country.