DukeEmployees.com - Duke Energy Employee Advocate
News - August 2001
EEOC Intervention in Workplace ComplaintsThe Recorder - Mike McKee - August 29, 2001
A few years back, Fred Alvarez flew to New Orleans on Home Depot's dollar to help fight off a bid by the Equal Employment Opportunity Commission to intervene in a potentially huge gender-bias case against the Atlanta-based home-improvement giant.
A lot was at stake. Plaintiffs' lawyers trying to get the case certified as a class action were finding it tough going in the employer-friendly territory of the 5th U.S. Circuit Court of Appeals. But EEOC intervention could have changed things almost overnight because the huge federal agency doesn't need to meet the strict standards for class certification that face the average plaintiff.
"It's an end run around all the protections of the class action process," says Alvarez, a partner at Palo Alto, Calif.'s Wilson Sonsini Goodrich & Rosati.
Alvarez, who heads up the firm's employment law group, managed to keep the EEOC out of the litigation and, in turn, prevented the case from becoming a class action. The suit eventually settled for a few million dollars, Alvarez says, as opposed to a smaller, almost identical, California case against Home Depot Inc. that settled for millions more after being certified as a class action.
"It was unusual at that point to stop an EEOC intervention," Alvarez notes. "We just made a lot of good arguments about how [EEOC lawyers] were sort of Johnny-come-latelies to the case, that they were going to make it more complicated."
The EEOC has long had the authority to file its own pattern and practice suits -- the agency's version of class actions -- to fight employment discrimination, and EEOC officials and plaintiffs' lawyers say there's nothing new or wrong about that.
But defense lawyers contend that the agency is finding more occasion to intervene in private suits these days, often at the request of plaintiffs who want help getting around the tough standards for class certification spelled out in the Federal Rules of Civil Procedure.
"It has certainly been more common in the last five years," says attorney C. Geoffrey Weirich, who in January got the EEOC barred from an Atlanta race discrimination case against Lockheed Martin Aeronautics Co. He and others say keeping the EEOC out can be pivotal to a case.
"Usually, the game is won or lost at either denying class certification or having [a case] certified," says Weirich, a partner in the Atlanta office of Los Angeles' Paul, Hastings, Janofsky & Walker. "Once it's certified, it's difficult for an employer to suck it up and go to trial. The [financial] risk is too high."
Alvarez, who was an EEOC commissioner from 1984-87, questions whether EEOC intervention in an already existing private suit is even ethical.
"If the EEOC wants to bring a case on [its] own, that's fine," he says. "But showing up to bail out a plaintiffs' lawyer who ran off the road doesn't seem like a proper use of the process."
Plaintiffs' lawyers insist that their defense counterparts are making a big to do about nothing, and accuse them of having a severely skewed view of things.
"Congress thought the only way protected class members could vindicate their rights was by statutory authority for the government to join with private individuals against companies that discriminate," says Reuben Guttman, managing partner of the Washington, D.C., office of Provost & Umphrey, a Beaumont, Texas-based plaintiffs' firm. "Any management firm that's counseling that there is something wrong with that isn't teaching its clients to comply with the law.
"What the defense bar would like," he adds, "is the elimination of class actions, because it would mean protected class members are never going to get a right of redress."
'A MUCH BIGGER BANG'
Furthermore, plaintiffs' lawyers like Guttman and officials at the EEOC insist that agency interventions aren't on the rise. Susan Oxford, an attorney adviser in the EEOC's Washington-based Office of General Counsel, says that while the agency could intervene in hundreds of employment discrimination cases, it has chosen to do so only about four to eight times a year.
"We have criteria that was established going on now for 10 years and it requires, generally, that we look at whether there is a broad public interest in the case, not a unique individual claim, and that there is something we can add to it," she says. "We ourselves apply the criteria the courts will apply: Is our application timely? Would we likely delay the litigation? And would our involvement prejudice any individual?
"So anyone suggesting that we abuse that tool," Oxford adds, "isn't aware of the facts."
Even so, defense lawyers point to several large cases in recent years in which the EEOC has tried to intervene, including some efforts that are still pending. Besides Home Depot and Lockheed, they cite intervention efforts against Rent-A-Center Inc., Wal-Mart Stores Inc., Ingersoll International Inc., Eagle Global Logistics, The Boeing Co., Mitsubishi Motors Corp., Ford Motor Co. and Texaco Inc.
They also note a 1996 Forbes magazine article in which Cynthia Pierre, the deputy district director of the EEOC's Chicago branch, vowed to pursue more cases like Mitsubishi, which settled for $34 million.
"We'll get a much bigger bang for the buck doing class actions," Pierre was quoted as saying. "In class actions, we can impact more people."
That kind of attitude worries defense lawyers, including several at a recent employment law conference in Monterey, Calif., held by San Francisco-based Littler Mendelson where EEOC interventions were labeled "a scary trend."
Equally frightening to some defense lawyers is the fact that EEOC intervention can get plaintiffs around the so-called numerosity requirement in federal rules, allowing for class actions for a handful of claimants rather than hundreds.
"You can get a smaller case certified that otherwise might not have made it under [the federal rules]," Weirich notes.
Defense lawyers assert that plaintiffs' desire for EEOC intervention might be the result of an unexpected consequence of the Civil Rights Act of 1991. That act gave plaintiffs the right to seek compensatory and punitive damages in employment discrimination cases, but inadvertently might have opened the door to limits on class actions.
Beginning with the 5th Circuit's 1998 ruling in Allison v. Citgo Petroleum Corp., 151 F.3d 402, some courts started holding that class actions would be inappropriate under the Civil Rights Act if the monetary relief sought was deemed more important than the injunctive relief of stopping discrimination. Plaintiffs' lawyers then, according to defense lawyers, began looking at EEOC intervention as a way around this roadblock, as well as around the stringent class certification requirements of Federal Rule of Civil Procedure 23.
"So what happens," Alvarez says, "is that if the plaintiffs are losing that class action battle, they call up the EEOC and they say, 'Please come, because you don't have to comply with Rule 23.' And the EEOC shows up and says, 'Let's don't fuss with all these Rule 23 issues. We'll try it as a class action.' And the plaintiffs get to ride along."
Some employer lawyers refer to it as piggybacking. But employee lawyers call EEOC intervention a legitimate way to rout out discrimination, and they insist that their opponents' complaints are purely self-serving.
"What they want is a slam-dunk certainty of a defeated plaintiff," says Richard Seymour, a partner in the Washington, D.C. office of Lieff, Cabraser, Heimann & Bernstein. "Most individual plaintiff's claims get tossed out on summary judgment because they can't show a pattern [of discrimination]."
The EEOC, however, can show that pattern, says plaintiffs' lawyer Joseph Sellers, a partner in Washington's Cohen, Milstein, Hausfeld & Toll who has brought class action discrimination suits against Circuit City Stores Inc., Wal-Mart, Microsoft, Rent-A-Center and Boeing, among others.
"The EEOC has the capacity to track other charges that have been filed against a company, charges of which we may not be aware," he says. "And it has a better appreciation of the breadth and scope of employment discrimination claims that are lodged against a particular employer."
Yet Sellers has resisted seeking EEOC involvement in his cases.
"For all its virtues, [the EEOC] purports to represent the United States," he says. "Those interests may very well -- but may not -- be the same as the plaintiffs, and it does not mean that the private plaintiffs have a meal ticket to a safe place. It would be essentially relinquishing control of the case."
In fact, Sellers and other plaintiffs' lawyers say EEOC intervention is hard to come by.
"The reality is that the government intervenes in an extremely limited number of cases," says Guttman, of Provost Umphrey.
Plaintiffs' lawyer Barry Goldstein of Oakland, Calif. lays out the pros and cons of EEOC involvement in a draft introduction for two acquaintances' upcoming book about employment issues. While the agency provides many benefits, such as manpower and other resources, he wrote, it also might have a different view of litigation tactics, the scope of the claims and the ultimate goal.
"The EEOC attorneys are anchored by their obligation to represent the 'public interest' as defined by the current administration," Goldstein, a partner of Saperstein, Goldstein, Demchak & Baller, wrote.
"For example," he added, "the government may accept a settlement that the private class rejects."
Overall, though, Goldstein believes intervention will likely enhance a privately filed suit. "The decision by the EEOC to intervene and the certification by the EEOC that the litigation is of 'public importance,' " he wrote, "may influence a court to consider the action worthy of the expenditure of the judicial resources required to manage a class action."
All that defense lawyers know is that successful EEOC intervention almost always results in class certification, which then leads to a pretrial settlement by employers for large sums of money. No large employment discrimination case has ever made it to trial, says Alvarez, of Wilson Sonsini.
"The closest one that I'm aware of is Home Depot," he says. "What happens is that the closer you get to trial, the more the exposure starts to loom and the board of directors or somebody says, 'Do we really want to be here?' "
For Want of a NickelEmployee Advocate - DukeEmployees.com - August 24, 2001
The article below, "A Simple Glass of Water," asks why it has become so difficult to get a glass of water in America today. The answer is the same for why employees have been deprived of pension benefits that were promised to them for twenty-five years, and why some people were billed $3880 for a megawatt of electricity. Corporate greed knows no bounds.
If one has been sufficiently sheltered from reality, he may not realize that there are Americans who do not have the price of a bottle of water. Corporate America has an answer for them: "Go thirsty!"
This sorry trend has been coming for a long time. About a decade ago, before bottled water was so prevalent, the following scene was observed at a service station in a large city. A customer entered the service station and paid for a gasoline purchase. There was a sign at the counter advertising ice water for 15 cents per cup. The man said that he had only a quarter left. He asked the attendant if he could sell him two cups of water for his last quarter. The answer was: "No."
The man was later seen returning to his car with a single cup of water, where two small children awaited him.
That incident was a small precursor of the times to come. If corporations cannot even deliver the pensions that people have worked for their entire lives, they certainly cannot be molly coddling them with a drink of water!
A Simple Glass of WaterNew York Times - By TED C. FISHMAN - August 23, 2001
CHICAGO -- Recently, on a day so blistering in Chicago that authorities issued a heat warning, telling people to stay inside when possible, I was out early with my wife and 10-year-old son, hoping to run errands before the temperature topped 90. Alas, at 9:45 a.m. we were too late, and the heat hit. We wanted water. We went into a coffee shop and ordered a latte for my wife, an iced decaf coffee for my son, and please, a glass of water for me. "I can only give you a small cup," the clerk told me. That would be fine, I told him. He came back with a thimble-sized cup with roughly one ounce of liquid in it. Was it possible to get more? I asked. "No," said the clerk. "That's all we can give out. We do sell water, though."
These days it seems that providing a simple drink of water is not so much an exercise in quenching the thirsty as in soaking them. Worldwide, bottled water is a $35 billion business. Over the next four years, the bottled water market is expected to grow at 15 percent annually. That dwarfs the growth rates for fruit beverages, beer and soft drinks, all under 2 percent. Of course, sometimes bottled water does taste better or is more convenient or safer than tap water — and is worth paying for. That's nothing new. More novel is the pervasive push by businesses to sell bottled water by depriving customers of tap water.
For the past few years, the movie theaters I frequent have been declining requests for water, pushing — at $2.50 each — the bottled product instead. Seen a water fountain at a gasoline station lately? Not likely. Bottled water is the one of the highest selling items — after cigarettes — in the stations' convenience stores. In restaurants, waiters now frequently ask for your drink order before they bring you tap water, in the hope that you can be talked into buying bottled water. A waitress I asked called this the "beverage greeting" that her manager required her to say before bringing a glass of water.
During my travels nearly 20 years ago through Indonesia's coffee-growing regions, I would often stop by a bamboo-thatched lean-to for a drink. Water in the land of the coffee bean rarely comes from a tap; it has to be hauled from wells, strained and boiled. Often I was served by rail-thin old men or women in fraying sarongs who subsisted on a few dollars a week. Yet, ask for water and they brought it. At first I asked to pay, not for the water, but for the work behind it. They'd refuse even the smallest coin. The custom of sharing water was too elemental to gum up with finagling.
In India, the Sarai Act mandates that an innkeeper give a free glass of drinking water to any passerby. Indeed, in most places around the world, giving strangers water is the bare minimum of humane behavior. Why is that not so here?
Will bear market spoil pension party?Pittsburgh Post-Gazette - By Len Boselovic - August 20, 2001
Pension fund managers aren't exactly Wall Street's version of gunslingers.
Confined by a company's financial health and the demographics of its work force, these conservative investors ply their craft with a keener sense of risk and greater appreciation of diversification than most investors.
For that -- and the raging bull market -- employers, employees and retirees can be thankful. Pension fund surpluses have bulged in recent years, transforming funds that were big annual expenses into steady contributors to a company's bottom line.
The pension plans of 10 large, publicly held Pittsburgh employers are no exception. Since 1997, these companies earned an average of 12.6 percent annually on the more than $80 billion in their defined benefit pension plans. Over the last four years, 2000 was the only one in which any lost money on their pension investments. Still, six of the 10 funds managed gains last year, paced by an eye-popping 19.8 percent at US Airways. By comparison, the S&P 500 lost 9 percent last year.
In most years, the pension fund returns outpaced what the companies had to pay out to retirees. The pension funds failed to earn the cost of their company's annual pension benefits only nine times out of a possible 40 over the four-year period. Seven of those occurred last year. More than half the time, the funds earned at least two times more than the company paid out in pension benefits in a given year.
For employers, the performance has been a windfall because they haven't had to contribute as much to their pension plans. One of them, Allegheny Technologies, didn't contribute anything over the four-year period. Allegheny Technologies and U.S. Steel even used some of their ample pension surpluses to pay retiree medical benefits.
Moreover, pension surpluses boosted the earnings of several of the companies. Although the investment gains don't actually leave the fund, accounting rules allow the gains to be reported as net income. It isn't uncommon for U.S. Steel's $9.3 billion pension fund to contribute more to the company's earnings than the steelmaker's mills.
"For some of these companies, these things [pension funds] become as important, if not more important, as the things they're making," says Wayne Shaw, an accounting professor at Southern Methodist University's Cox School of Business.
One often overlooked side effect is that the incentive pay of top executives, which is based on how much a company earns, has been boosted in part by pension gains that companies are booking as profits. The phenomenon hasn't escaped the attention of retirees whose pension checks never increase.
Hoodwinking investors with the false profits is one thing, says C. William Jones, 62, who spent 30 years with New York Telephone and Nynex before retiring in 1990. The company is now part of Verizon, which ended 2000 with a pension surplus of $22 billion.
"But don't go rewarding yourself for hoarding the money and not sharing it with the people for whom it was put away," says Jones, president of the Association of BellTel Retirees. The group represents 55,000 Verizon retirees.
Jones co-sponsored a proposal at Verizon's shareholder meeting this year asking the company to exclude pension gains when calculating performance-based compensation. The initiative earned 19 percent of the vote.
"It just seems to me a wretched incentive for management," says Norman Stein, a University of Alabama law professor who follows pension issues.
Jones, meanwhile is collecting just about the same pension check he received when he retired as managing director of corporate planning. Nynex stopped adjusting pension benefits of management employees for inflation in 1991…
U.S. Steel management retirees feel the same. They haven't had a cost-of-living adjustment to their pensions since 1992, when they received a minimum monthly increase of $50. Last year, after the United Steelworkers union negotiated pension increases for hourly workers, management employees who retired prior to 1991 received a one-time payment of $100 for each year they'd been retired.
Dan Hestetune, 71, was a mine superintendent for U.S. Steel's iron operation in Minnesota until he took an early retirement in 1986. He realizes the company has no legal obligation to increase his monthly check.
"There should be a moral obligation if those funds are appreciating each year," he says.
There was a time when companies were inclined to think that way.
"Twenty years ago, it was very common for large companies to basically use surplus plan assets to help their employees keep up with inflation," Stein says. But today, their policy is "this is all we promised you ... so this is all you get"
From an employers' point of view, the last 18 months prove why they have to be cautious custodians of the funds. If the market continues to go down or provides puny returns, pension plans won't be the profit centers they once were.
Companies "may have to start expending money again," says Geoffrey Gerber, president of TWIN Capital Management, a McMurray money management firm.
One ironic correlation between the health of pension funds and the health of a company is that a company is in the best position to contribute to a pension plan when it is least likely to have to contribute, says David Hammerstein, senior consultant for Yanni Partners, a Downtown pension consultant.
When the stock market's in high gear, corporate earnings are strong and companies have a lot of cash. But when the market turns south, earnings decrease or disappear. Cash becomes scarce just when contributions to the pension fund may be required, he says.
While employers worry their pension funds won't be the earnings blockbusters they were in the past, Stein doesn't think the surpluses will vanish any time soon.
"I think a lot of these plans are in permanent surplus status," the law professor says.
Shaw will be watching assumptions companies make about what their plans will earn in coming years.
The projections, along with assumptions they make about how much their payroll costs will increase, will determine how much they have to contribute to the plan. Shaw says in the past, some companies have been optimistic in projecting investment returns in order to lower their pension expense.
"People have to look at those things and ask: 'Are those reasonable assumptions?' " he says.
Shaw believes a prolonged downturn could prompt some companies to switch to defined contribution plans, in which employers and employees contribute to a retirement account that's directed by employees. Traditional pension plans are defined benefit plans, requiring companies to manage the money and obligating them to pay retirement benefits even when the stock market performs poorly.
But with a defined contribution plan, a company's "off the hook once the money's put in," he says.
Get Fired and Collect MillionsEmployee Advocate - DukeEmployees.com - August 15, 2001
One can get fired for poor performance and take home millions of dollars, according to the Associated Press (AP). There is one hitch. You have to be a top executive of a large firm to pull it off.
Lucent Technologies gave millions of dollars to two top executives just to get rid of them! One received payments totaling over $10 million! The other executive received a lump-sum of $5.5 million, plus other perks.
Did we mention the pension? One will still receive a pension of around $1 million per year. Life, health, and dental insurance will also be included.
AP also reported that the CEO of Honeywell International will receive a severance package of almost $10 million, plus “generous pension checks.” Honeywell also forgave the interest on a $1.6 million loan, and threw in a few more perks.
When top executives of large companies leave, they often get “golden parachutes.” When employees leave, they often get the “golden boot.” Fired executives can get fired and take home millions. Dedicated employees can work for 30 or 40 years and not even get the meager pensions that they were promised, or the health coverage.
Yahoo Posters Can Stay Anonymouswww.NewsFactor.com - By Clare Saliba - August 14, 2001
Scoring a victory for the protection of anonymous speech on the Internet, the Electronic Frontier Foundation (EFF) announced Monday that a California state court has ruled in its favor and nullified a subpoena calling for disclosure of the names and identities of several anonymous Web users who wrote critical postings about a law firm on a Yahoo! message board.
At issue in the case were subpoenas sent out by Pre-Paid Legal Services, as part of its litigation with another company. The subpoenas demanded the identities of eight Web users who participated in online discussions related to the company. The EFF represented two of those who had received the subpoenas.
Pre-Paid Legal argued that it needed the identities of the so-called "John Does" to determine whether they were actually former sales associates for the company who currently work for a competitor, and who had agreed to comply with a voluntary injunction barring them from revealing the firm's trade secrets.
Countering Pre-Paid Legal's arguments, EFF senior staff attorney Lee Tien contended that the messages in question indicated that the posters were only voicing their criticisms of the company and did not necessarily indicate that they were privy to its secrets.
Moreover, Tien asserted that forcing disclosure of the names of the discussion's users would allow Pre-Paid Legal to punish the users for their speech.
According to the civil liberties organization, Santa Clara County Superior Court Judge Neil Cabrinha ruled Friday that the messages did not appear to violate the injunction, which was intended to protect the trade secrets. In addition, the EFF said that the judge held that the First Amendment protection of anonymous speech outweighed a company's alleged need to unmask the posters' identities.
Pre-Paid Legal, which is headquartered in Oklahoma, was not available to comment on the ruling.
Tien said he hopes Cabrinha's decision "will signal to other companies that judges will not permit corporate executives to abuse the courts in ferreting out their critics."
The San Francisco, California-based EFF had asked the state superior court to apply a four-part test adopted by a federal court in a previous case that had similar issues. In that case, the EFF successfully joined the American Civil Liberties Union (ACLU) of Washington in defending an anonymous Internet poster who had participated in an online discussion about 2TheMart.com.
Swayed by their arguments, a Seattle, Washington judge voided the company's subpoena in April, basing the decision on whether the subpoena was brought in good faith, whether the information related to a core claim or defense, whether the identifying information was directly or materially relevant to the defense, and whether the information was available from other sources.
The EFF said that the anonymous-speech cases will probably occur with increasing frequency -- and thereby jeopardize the free flow of speech over the Internet -- as online users increasingly take to venting their criticisms on Web-based message boards.
However, the organization now hopes courts will look to adopt a standard protecting anonymous speech against such subpoenas demanding disclosure of the posters' identities.
"We expect to see many similar decisions recognizing that First Amendment protections do not disappear just because someone choose to speak online," said EFF director of public policy Lauren Gelman.
More Internet SnoopsEmployee Advocate - DukeEmployees.com - August 10, 2001
The American Civil Liberties Union issued a press release warning of FBI internet snoops. They have a wiretapping system called “Carnivore” that your Internet service provider is forced to install. Carnivore can filter all communications going through the ISP.
Congressman Richard Armey (R-TX) is considering the use of budget cuts to stop Carnivore.
The FBI and CorporationsEmployee Advocate - DukeEmployees.com - August 10, 2001
Lately, the FBI has been getting into trouble in the same areas as corporations. The Washington Post reports that the Justice Department is investigating an employee retaliation charge.
Agents who exposed the FBI’s handling of the Ruby Ridge siege claim that threats have been made.
“Officials said the probe also will delve into broader complaints about a double standard of discipline at the FBI that many agents say has protected top managers from punishment and sapped morale.”
Reporter’s Sources Have ProtectionDuke Energy Employee Advocate - http://dukeemployees.com - August 10, 2001
An editor and former reporter of The Cincinnati Enquirer do not have to reveal confidential sources used in stories about Chiquita. This ruling came from a federal magistrate, according to the Associated Press.
Reign of Terror at Colombian Coca-Cola PlantReuters - By Jason Webb - August 9, 2001
BOGOTA, Colombia - Hours after they gunned down Isidro Segundo Gil, paramilitaries broke into the office of the local union representing workers at a Coca-Cola bottling plant in northern Colombia and set their headquarters on fire, witnesses say.
The paramilitaries followed up the murder and arson -- which are described in a sealed Colombian criminal investigation seen by Reuters -- by calling a meeting of workers inside the plant, located in the northern Colombian town of Carepa. During the session, the workers were told to resign from their union by that afternoon or risk a bullet.
Gil's killing is the most chilling incident described in a lawsuit filed in a Miami district court in July whose allegations of abuses by management at locally owned Coca-Cola Co. bottling plants in Colombia have embarrassed the U.S. soft drink giant. The suit alleges that management at plants throughout Colombia used paramilitaries to crush unions with a terror campaign of threats, kidnap and murder.
In recent years, large parts of Colombia have fallen under the sway of paramilitaries -- illegal right-wing militias funded by businessmen and ranchers tired of blackmail and the threat of kidnap by left-wing guerrillas.
Gil, general secretary of the local union at the plant operated by the Bebidas y Alimentos de Uraba company, was murdered on Dec. 5, 1996. According to the findings of the official criminal investigation, two men on a motorbike came to get him at work where he was manning the bottling factory's gate.
They asked for him by name before shooting him four times in the head and then six times in the chest and testicles as he lay on the ground near a big Coca-Cola sign.
Later in December, Sinaltrainal -- an abbreviated version of the Spanish name for the National Food Industry Workers' Union -- received 43 typed resignations, all with the same wording, from its members at Carepa. Other workers fled the town and some are still in hiding.
According to the investigation case file -- which is still officially sealed -- the plant manager and another senior worker admitted in testimony that paramilitaries had entered company premises, but said they were afraid to do anything about it. Other plant officials testified that they knew that paramilitaries had threatened unionized workers.
While finding that paramilitary forces were responsible for Gil's killing, the assailants were never caught and the inquiry cleared two plant officials of soliciting the murder in a bid to stamp out the union.
The ``paras'' as they are known locally, have a tendency to regard unions as guerrilla fronts, and respond accordingly.
At least 112 Colombian unionists were killed in 2000, according to Amnesty International. After 37 years of guerrilla war, Colombia is locked into a vicious circle of violence. Including common homicides and war-related massacres there are 25,000 killings here every year.
The owner of the Carepa plant, a U.S. citizen, was named as a defendant in the U.S. suit, together with the largest Coca-Coca bottler in Colombia, Panamerican Beverages, Inc. (Panamco), and the Coca-Cola Company itself. The United Steelworkers of America and the International Labor Rights Fund filed the case on behalf of Gil's estate and Sinaltrainal.
The Sinaltrainal union no longer has an office in Carepa.
Gil's alleged killers could not talk. At least one of the suspects was himself put to death just two months after carrying out the hit -- apparently the work of other paramilitaries one night when he was on his way to a cabaret show.
But even if the Carepa plant managers' defense of fear is true, they surely should have at least told the police, argues Gil family lawyer Pedro Mahecha: ``Even though they knew about the threats against the workers and the presence of known paramilitaries on company premises, we don't know of any complaints made by the company to the authorities.''
One former Carepa worker who declined to be named told Reuters that the paramilitaries tried to kill him after murdering Gil. He has lived in hiding for the past four years, with his wife and two daughters. Every once and a while, he says, the paramilitaries track him down and he has to move on again to another town.
``I had just got to work and I was in the warehouse working when I heard the first shot. I looked and Isidro was crumpling. I was the first to get to where he was lying, but when I got there he was already dead,'' he said.
``After they killed Isidro, a few days later the same guys held a meeting with some company workers and told them that it had been them who burned down the union office, that it had been them who killed Isidro and that from then on they wouldn't answer for the lives of anyone who talked about the union.
``Then, after that, they began to show up in the company, in groups of three of four. They'd hang around inside the company looking at what was going on and what wasn't going on, as if they were company workers,'' he said. The Carepa bottler, which has a Coca-Cola licensing agreement, belongs to investors including U.S. citizen and old Colombia hand, Richard Kirby, currently a resident of Florida.
Kirby's lawyer, William McCaughan, said that neither the businessman -- who is a former Panamco president -- nor his son, also called Richard and named in the lawsuit, had anything to do with paramilitaries or with the murder. He said they had hired managers to run the plant, which they oversaw from afar.
``The son has to my knowledge never ever been there and the father was there one time many years ago,'' McCaughan told Reuters by telephone from the United States.
Panamco firmly denied having any links to paramilitaries and said it might sue those making accusations relating to its plants. Panamco bottles Coke for about 95 percent of Colombia, and the U.S. soft drink giant has a minority share holding in its main shareholder, Panamerican Beverages.
But Sinaltrainal says that five of its members at Coca-Cola bottling plants have been killed since 1984, three of them during contract negotiations.
In another recent incident, a worker at a Panamco bottling plant in Cucuta said he was kidnapped by armed men who told him to stop making trouble for Coca-Cola.
A spokesman for Coca-Cola in Colombia, Pablo Largacha, said in a statement that the U.S. firm denied any wrongdoing in the war-torn country. He added that Coca-Cola was concerned by the allegations of abuses, but did not believe its bottlers had been involved.
This is not the first time that Coca-Cola has been embarrassed by alleged abuses at its bottling plants. The U.S. company withdrew a bottling agreement from a plant in Guatemala in the early 1980s after international labor activists protested the murder of three local union leaders in a dispute and an attack made against a fourth. Sinaltrainal's national president, Javier Correa, says there is a pattern of harassment at Coca-Cola bottling plants around Colombia. He says he often receives death threats.
``I am always getting threats over the phone at my house. The last time they left a message saying 'We're going to cut you up,' and they turned on a chain saw,'' he said at the union's headquarters in Bogota.
Chain saws have been used in some of the most horrific mass killings carried out by the paramilitaries -- whose regular massacres of suspected guerrilla collaborators have spread fear through much of Colombia's countryside. Much of the paramilitaries' brutality can be traced back to the 1980s, when Colombia's cocaine lords started financing their own paramilitary gangs.
Recent investigations have exposed links between paramilitaries and sectors of the army, but President Andres Pastrana has made an effort to break this connection.
Correa said most workers for Coca-Cola bottling plants in Colombia were now non-unionized subcontractors. At the Carepa plant, the union had presented a formal request to negotiate working conditions with the company at the end of November 1996. Sinaltrainal says that, under Colombian law, the last day for the company to reply was Dec. 5 -- the same day Gil was killed.
Keeping courts openThe Charlotte Observer - August 9, 2001
Should powerful interests be able to use North Carolina courts as a private dispute settlement service? Should courts be allowed to lock the public out when, say, a hospital and its doctors are at odds over medical performance?
This question highlights a significant difference between the federal court system and North Carolina's courts. Federal law generally requires that courts - criminal and civil - be open to the public. State law also embraces the concept of open courts, but the N.C. Supreme Court has recognized one big exception: the state's medical peer review law, which was written to keep potentially damaging information about a doctor's medical performance out of the public's view.
We're not disinterested bystanders in this matter. The state Supreme Court ruled two years ago in a Charlotte case that a trial judge acted correctly when he ordered a courtroom closed and declined even to hear a request for a hearing on closing the court. The Observer sought to present arguments that the public was entitled to be present in the court proceeding, but the judge refused to even hear that argument.
The judge's decision, and the Supreme Court's opinion upholding it, are at odds with the N.C. Constitution's requirement that the public have access to court proceedings and court records.
This case is not about a reporter's right to be present. It is about the public's right to know what goes on in its courtrooms, and private interests' power to use the courts outside the public's view.
Now the state House of Representatives is moving to correct these unfortunate rulings. It has approved 110-0 a bill sponsored by Rep. Jennifer Weiss, D-Wake, that gives the public the right to request a hearing and present arguments as to why the courtroom doors should remain open in cases where the litigants prefer to close them. The bill does not give the public or the press the right to intervene in the case, of course, but only to argue in favor of public access.
The bill does not guarantee that courts will be open in such cases. It requires only that a judge hold a hearing before closing the doors. If the judge decides that there is a compelling need for confidentiality that outweighs the public's right of access to court proceedings, the judge can still close the court.
The House bill is a modest remedy. But it is worthwhile because it at least gives the public the opportunity for a hearing when judges consider barring the public from hearing a case that is of considerable public interest.
Federal Judges Do Not Like Internet SnoopsEmployee Advocate - DukeEmployees.com - August 9, 2001
Some federal judges have not taken kindly to those who spy on their internet activity. Here is a quote from The New York Times: “A group of federal employees who believed that the monitoring of their office computers was a major violation of their privacy recently staged an insurrection, disabling the software used to check on them and suggesting that the monitoring was illegal and unethical.”
The matter is to be resolved by The Judicial Conference of the United States. They will meet on September 11, 2001.
Chief Judge Mary Schroeder (Ninth Circuit) wrote: "We are concerned about the propriety and even the legality of monitoring Internet usage." Her statement indicates that those who snoop could face lawsuits and damages for violating the Electronic Communications Privacy Act of 1986. This legislation provides for civil and criminal liability for those who intercept "any wire, oral or electronic communication."
She cited a Ninth Circuit ruling this year against an employer for accessing an employee’s Web site! The Supreme Court has not ruled on the issue of just how much snooping, if any, an employer can legally do.
Judge Alex Kozinski (Ninth Circuit) feels that internet monitoring violates the anti-wiretap statute. His opinion is that snooping may be a felony and that an award of monetary damages may be appropriate.
Can you possibly think of a more fitting development that internet snoopers getting federal judges in an uproar! Employees need all the federal judges on their side that they can get. Large employers like nothing better that to throw their weight around with employees. Here is a group that can lay the corporations out flat, and hang them up to dry!
All we need now is for the government to try to take away the judges pensions. It would be interesting to see how easily the judges could be sold on a cash balance plan. Nothing brings the reality of the cash balance injustice home, until it happens to you.
Verizon Employees Fight BackEmployee Advocate - DukeEmployees.com - August 7, 2001
The managers at Verizon continue to fight the loss of pension and other benefits. Large numbers of them are signing a petition to senior management, demanding a return of benefits. The Communication Workers of America has offered assistance in unionizing the workers. EEOC age discrimination charges have been filed and a law firm has been retained.
Verizon is coming to understand that taking the benefits was the easy part. Management lost more credibility by pretending to fix the problems with the use of smoke and mirrors, while providing nothing of substance.
We will be hearing more from the Verizon employees as they fight to reclaim their benefits.
Allstate Robs AgentsEmployee Advocate -DukeEmployees.com - August 7, 2001
There seems to be no end to the outlandish schemes being devised to separate employees from their earned pension benefits. You may feel that your insurance company has robbed you. Well, according to Bloomberg News, Allstate robbed their agents as well! “Allstate Corp., the No. 2 U.S. auto and home insurer, has been charged in a lawsuit with robbing 6,400 of its agents of $325 million in pension and profit-sharing benefits when it forced them to become independent contractors or sell their agencies.”
Bloomberg used no weasel words here. How refreshing, when so many are calling a robbery anything but a robbery.
Allstate is also facing an overtime lawsuit. Once companies start bleeding the employees, they leave no stone unturned.
NC Welcomes Illegal Aliens, Not 3ed PartyEmployee Advocate - DukeEmployees.com - August 5, 2001
David Firestone (The New York Times) reports that North Carolina welcomes illegal aliens as drivers in the state. Only three other states will issue a driver license to illegal aliens. Illegal aliens are swarming into North Carolina from other states, just to get a driver license.
North Carolina is not as liberal when it comes to third party candidates. It is almost impossible to get on the North Carolina ballot as a presidential candidate. This is why Ralph Nader was never on the North Carolina ballot. The North Carolina politicians do not want any outsiders messing up their good ole boy system. Corporations are happy with the system also.
Illegal aliens cannot run for president, so they are welcomed. North Carolina: “Give us your huddled masses and illegal aliens, but please, no third party candidates!”
Employers Maintaining Vigilance of Layoff RageNew York Times - By EVE TAHMINCIOGLU - August 1, 2001
Juval Aviv, a private investigator in New York, had lunch in April with a man he suspected of sabotaging one of his client's computer systems, causing up to $20 million in damage and indefinitely delaying a long-planned public stock offering.
Mr. Aviv, whose client was a New Jersey chemical company, told the man, the company's former manager of information- management systems, that all the evidence pointed to him and that he was there to help him make things right. After a few hours and many cups of coffee, the 56-year-old former employee, whose name Mr. Aviv would not disclose to protect the identity of the company, confessed his guilt.
The man was one of 50 people laid off from the company in February, and he had known another executive's computer password and had used it after he lost his job to tap into the company's computer system from home and delete critical inventory and personnel files, Mr. Aviv said.
What caused this company veteran, who had been making $186,000 a year and who had a wife and three children, to crack? An anonymous note that he wrote to the president of the concern before he was caught sheds some light on his motive. "I have been loyal to the company in good and bad times for over 30 years," he wrote. "I was expecting a member of top management to come down from his ivory tower to face us with the layoff announcement, rather than sending the kitchen supervisor with guards to escort us off the premises like criminals. You will pay for your senseless behavior."
As the economy continues to stagnate and layoffs proliferate, workplace experts say, it is becoming more important than ever for employers to display vigilance against possible retaliation by the people they are letting go.
For one thing, workers seem to be angrier these days when the ax falls, said Beverly Smallwood, a Mississippi psychologist who does workplace consulting for businesses. Many workers have put in endless hours and sweat for the promise of hefty stock options that never materialized.
"I don't recall at any time in my history, and I've been in this for 30 years, where the degree of destruction was quite as high," said Linn A. Hynds, a Detroit employment lawyer. Since December, he has advised companies in 10 factory and office closings and layoffs involving 1,500 workers in southeastern Michigan.
At the same time, the people doing the dismissals at many companies - especially dot-coms - are younger and more inexperienced than their predecessors in the last big layoff binge of the early 1990's. In their overzealousness, some of them make the mistake of bringing in security guards in inappropriate settings, increasing the victims' resentment and making retribution more likely.
The New Jersey chemical company committed two classic faux pas in handing out its pink slips, in the view of Mr. Aviv, who is president and chief executive of Interfor Inc., a private investigation firm. First, it was unduly harsh toward a high- level executive who was accustomed to being coddled and who was familiar with the ins and outs of its computer network. And second, it failed to maintain a backup filing system to protect its crucial documents against sabotage.
The worker was arrested and is out on bail, but may avoid jail time, he said, because the company does not want to look stupid and is considering settling the case to hush up the matter.
Two of the most common acts of revenge are theft of company property and breaches in the company's computer network, according to an annual survey of Fortune 1000 companies by Pinkerton Inc., the Chicago security firm. Ray O'Hara, Pinkerton's vice president for the Western region, estimates that employee retaliation occurs in only 1 percent of dismissals, but could be as high as 5 percent at companies that do not handle layoffs well or that have a hostile corporate culture.
The electronic workplace, while making businesses more productive, has also created a situation that enables employees to bring a company to its knees with just a few keystrokes.
That reality was brought home five years ago when Timothy A. Lloyd, a computer programmer, was accused of hiding a software "time bomb" to delete critical files in his company's computer system after being fired. The case, which is still making its way through the courts, involved Omega Engineering Inc., a temperature components maker in Bridgeport, N. J., which asserts that the damage could eventually cost it $10 million in sales and contracts. Mr. Lloyd has denied any wrongdoing.
Moreover, with the growth in telecommuting and the spread of Internet-capable hand-held devices, it has become easier for dismissed workers to wreak havoc outside the company premises. Companies are also beginning to install wireless networks in offices and factories that go through walls and have a range of 300 feet. That means employees can potentially tap into company databases via a laptop computer from right outside their former workplaces.
As a result, security experts suggest cutting off employees' connections to the corporate networks before letting the employees go.
"Every new wave of technology introduces new security exposures," said Richard Hunter, managing vice president at Gartner Inc., a research firm. "Clamp down and take away pass codes," he advised. "If people who have a reason to be upset have access to your system, then they have the means. The remaining question is: Do they have the motivation?"
A disgruntled employee at an East Coast service company certainly did, according to Jay Ehrenreich, a senior manager for the cybercrime unit of PricewaterhouseCoopers in New York. The employee figured out how to alter product prices on the company's Web site and fouled up a month of bills, Mr. Ehrenreich said.
The sabotage, which occurred during a company reorganization and caused hundreds of thousands of dollars in damage, was never linked to a specific employee because the process for assigning identification numbers for access to the network was so "messed up" the worker was able to obtain a bunch of ID's and hide his or her identity, he said. The company called in Mr. Ehrenreich to fix the problem.
Even if they are cut off from the company's computers, disgruntled workers have found that the Internet makes it easy to take their frustration out by spreading false information in chat rooms or sending out fake news releases. And they can always engage in the low-tech practice of just bad-mouthing their former employer - and there is not much a company can do about that.
Amazon.com tried to convince 1,300 of the workers it laid off this year to sign an agreement that included a clause to not disparage the company in return for more lucrative severance deals, but backed off from enforcing the clause under pressure from union organizers and also fear of a public reaction.
Old-fashioned theft also remains a staple of worker retaliation. The average company loses approximately 6 percent of its gross revenue to employee fraud and abuse, according to the Association of Certified Fraud Examiners in Austin, Tex.
"We classify it as ex-rage," said Daniel D. Thaxton, manager for document security at Standard Register, a maker of business forms in Dayton, Ohio. One common blunder is to leave open boxes of company checks in unsecured rooms, he said.
But with computers infiltrating every corner of businesses today, from the head offices to the manufacturing floor, even blue-collar workers are potential cybersaboteurs, Mr. Thaxton says. For example, he says, an angry assembly line worker can now sabotage a computer system, bringing down an entire line.
"While some people on the floor are much more likely to take a hammer to a piece of machinery, we have had people reprogram systems and mess the manufacturing processes up," he said. "Most of the cases we have seen involved robotic equipment, such as a robotic arm."
Often it takes two to three days to figure out what is wrong with such a system, Mr. Thaxton said, and in the age of just-in-time manufacturing, that can mean the loss of contracts.
In another example of employee mischief, Mr. Hynds, the Detroit lawyer, says he knows of several cases in which fired workers have stuffed their office computer in the cardboard box they are given for personal belongings and have tried to walk out with it.
Sometimes, they were merely trying to protect their private files, not steal company secrets, he says, as in the case of a married company vice president who tried to spirit out his computer because it contained love letters to and from his girlfriend. But the fact remains that former employees can end up with valuable company information at their disposal. To avoid that, he suggests letting dismissed workers download or erase personal files under strict company supervision.
It is not just the laid-off workers who pose a threat. Employees who survive a layoff can also vandalize company property to avenge their departed co-workers.
Arthur May, operations manager at the Kimberly-Clark mill in Hendersonville, N.C., recalled a time at another paper plant that a wrench jammed a machine and shut it down. "When people feel they've been dealt with unfairly, `ghost' things just start to happen," he said.
To be sure, most employees are honest and tales of sour-grapes subversion can be overblown. Jonathan L. Alpert, a labor lawyer in Tampa, Fla., who represents workers, said dismissed employees could be easy scapegoats to blame for run-of-the- mill computer problems or even management missteps.
Most dismissed workers "are shell-shocked," Mr. Alpert said.
"Their main concern," he added, "is figuring out how to get their lives together, not masterminding some sort of retaliation."