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Archives for November 2013

Who Stole The American Dream?

Randy Freking

If you ever wondered why real wages and income have stagnated since the 1970s, read “Who Stole the American Dream?” by Hedrick Smith (Random House).

According to Mr. Smith, a best selling author, one fundamental cause of wage stagflation is the difference between the early and mid-20th century industrialists, such as Henry Ford and Reginald Jones (Jack Welch’s predecessor at GE). They believed  that part of their mission was to benefit all of their constituents – workers, suppliers, the community, to name a few. In those times, the Chief Executive Officers pay was around 40 times the pay of the average worker according to the Federal Reserve.  So, if an average worker earned $30,000 a year, the person who began the operation or led the operation could expect to make 40 times that pay – or $1,200,000.  A nice incentive, but nothing like today.

Unfortunately, along came economists like Milton Friedman in the 1970s, who took the view that the mission of the CEO was to maximize shareholder profits rather than view employees as the Company’s greatest assets.  Maximizing shareholder profits leads to pressure on all costs, and most importantly in our opinion, the costs of labor. With that as the mission, CEO’s began taking stock options and stock shares as compensation. A nice incentive that motivated them to solely increase profits.

The result? The multiple today between average worker pay and the pay of the CEO has risen tenfold – to 400 times the average worker pay instead of 40 times. So, if the average worker earns $30,000, the CEO expects 12 million dollars in compensation.

By the way, at Wal-Mart – the “friend” of the struggling middle class and working poor – former CEO Lee Scott was paid $17.5 million in 2005 – 900 times the average pay and benefits of the typical Wal-Mart employee.

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When is an accomodation too much?

Randy Freking

Under Title VII of the 1964 Civil Rights Act, an employer is obligated to accommodate the religious beliefs of employees.  Similarly, the Americans With Disabilities Act requires an employer to accommodate the needs of disabled workers.

Muslim employees in Greeley, Colorado and Grand Island, Nebraska meat packing plants claimed that the plants violated Title VII by failing to accommodate their need to pray periodically during the work day.  The employees believed that they should be allowed to take unscheduled breaks to pray or have a mass meal break at a time coinciding more closely with sunset prayer.

On October 11, 2013, a federal judge in Nebraska granted summary judgment for the employer, reasoning that the employee’s request would cause an undue hardship to the employer.

This case illustrates the employer’s obligation in response to an accommodation request for either religious or disability reasons.  When an employee claims that an employer failed to accommodate his or her religious beliefs or a disability, the employer has the burden of proving the affirmative defense that the granting of the proposed accommodation would have resulted in an “undue hardship.” Relevant case law defines “undue hardship” as more than a de minimis burden on the employer, and essentially requires larger employers to honor proposed accommodations more so than smaller employers.

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Whistleblower Protections for Truck Drivers

Mark Napier

Big trucks, truckers, and trucking companies are subject to numerous federal and state safety regulations. The Federal Motor Carrier Safety Administration regulations apply to any commercial vehicle over 10,001 lbs. engaged in interstate commerce. These same regulations, which have been adopted in Ohio and most states, are also applicable to intrastate commerce. The trucking and logistics industry is highly regulated because big truck crashes often result in fatalities or permanent, horrible injuries.

The trucking and logistics industry is also quite competitive. Any experienced trucker will verify that trucking company managers and dispatchers often pressure the trucker to get a load to a destination by a certain date and time that guarantees the trucker must violate mandated hours of service regulations and speed limits. When big trucks are traveling at an excessive speed, and with a driver who is fatigued, it’s a recipe for disaster for the trucker and other motorists.

In order to protect truckers who say no to their employers that want them to violate safety regulations, the federal law The Surface Transportation Assistance Act of 1982 was passed. Section 405 of this Act protects drivers, mechanics, freight handlers, and certain other employees in the transportation industry from retaliation from their employer when reporting safety violations.

If you as a trucker are considering reporting unsafe practices by your employer, or you have done so and have experienced retaliation, consider phoning Freking & Betz at 513-721-1975 to schedule a consultation.

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Randy Freking on WLW 700 today discussing workplace bullying

Randy Freking

Listen in to WLW 700 today at 12:05PM when Willie Cunningham will interview Randy Freking as a follow up to our blog post yesterday about bullying in the workplace.

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How Many Richie Incognitos Are In Your Workplace?

Randy Freking

In recent days, we have learned that a 290 pound NFL offensive lineman for the Miami Dolphins, Jonathan Martin, was reluctant to complain about obnoxious, racist bullying by a teammate, and instead chose to take a leave of absence. Only after the Dolphins – his employer – claimed that the leave was unrelated to the behavior of teammates did Martin’s agent complain to the NFL and expose the Dolphins’ claimed innocence as an attempted cover up of behavior that has no place in any workplace.

And today we learned that Dolphin coaches told Incognito to “toughen up” Martin during the spring, which was followed by the racist voicemail message. And the Dolphins didn’t know about it?

If a 290 pound offensive lineman is afraid to complain to the team’s coach, general manager, or the owner, why do so many people not understand why everyday workers are afraid to complain about similar treatment in ordinary workplaces? And why do so many co-workers who observe or know of the behavior not do something? The short answer: ordinary workers fear retaliation for making complaints.

When Martin suddenly left the team last week, he did not complain about the use of vulgar racial epithets because he was afraid it would short curcuit his NFL career; much less powerful workers – the minimum wage single mother and every other employee who relies upon a steady paycheck – often fear complaints will fall on deaf ears or result in a cover up, much like the Dolphins initially attempted.

We applaud the Dolphins for suspending the bully Richie Incognito, but they did so only after it was clear that the agent for Martin was not going to allow the Dolphins to claim a lack of knowledge and bury the issue. It is hard to imagine that Dolphin players and coaches did not know why Martin left, but the Dolphins did nothing until Martin’s agent made the complaint.  Was it because Incognito was an All-Pro and the Dolphins were prepared to allow his bullying at the expense of Martin?

How many other racist or sexist Richie Incognitos are known in American workplaces but are tolerated because they drive financial results? We hear stories frequently from employees who experience bullying behavior from co-workers or supervisors but are afraid to report the abuse. But they also believe that their companies often are aware of the problem, choose to tolerate it, and are prepared to claim a lack of knowledge while invoking a defense of “she should have complained.”

Let’s hope that other employers learn the lesson that known bullying in any form, much less racial or sexual bullying, should never be tolerated even if the victim feels powerless to complain. The Dolphins should have dealt with their bully long before Martin felt compelled to leave the team.

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