Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA). [Read more…]

Chamber Renews Assault on EEOC

ProstrationIt is hard to believe but the U.S. Chamber of Commerce has accused the U.S. Equal Employment Opportunity Commission (EEOC) of overreaching in enforcing our nation’s employment discrimination laws.  Hard to believe because the opposite is true.

Due to budget and staff cuts, the EEOC is litigating the fewest number of cases in modern history –148 in 2013 compared to 314 in 2009 and 416 in 2005. The EEOC has practically ignored the epidemic of age discrimination that has persisted since the start of the Great Recession in 2007. The EEOC received 21,396 complaints of age discrimination in 2013 but filed only seven lawsuits that year with claims under the Age Discrimination in Employment Act.

All of this makes it supremely ironic that the Chamber, which describes itself as “Standing Up for American Enterprise,” is urging the Congress to  treat the EEOC as if  it is a rogue agency that is bent on crushing the last vestiges of free enterprise in America. [Read more…]

National Chamber Lobbies Federal Cts

When people think  of lobbyists, they usually think of groups that work behind the scenes to  influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however,  has had tremendous success “lobbying” federal courts  through  “friend of the court” briefs filed in  lawsuits  on behalf of its conservative  corporate clients. For example, the Chamber routinely opposes any perceived expansion of  worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at  Open Secrets.org  estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up,  General Electric, which spent about  $294 million over the same period.   No union, labor, consumer or environmental group was listed in the top 20 U.S.  lobbying groups.

National Labor Relations Board

At present, the Chamber  is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).   Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a  lawsuit filed by Noel Canning  Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of  an adverse decision issued by the  NLRB in an unfair labor practices dispute. The Chamber argued that  the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that  Obama’s  appointments violated the Recess Appointments Clause of the U.S. Constitution.  The appeals court said recess  appointments may be made only during the recess that occurs  between each session of Congress and not during  breaks that occur  while Congress is still in session. The Court also said recess appointments can  only be made to fill  positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court  heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This  would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber  successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber  does not limit itself to “lobbying”  the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber  funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that  300,000 Floridians will “lose their current coverage because of Obamacare.”

The  Chamber describes itself  as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

OSHA Rule Would Reveal Rogue Employers

librarycongress.twolaborersThe truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly  is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or  an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries.  (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release,  OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce,  fresh from its victory in defeating a proposed rule by the National Labor Relations Board  to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried  Fellner. (This was the chamber’s winning argument  to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate  conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the  reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.