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Jan., Feb.


Pre-1999 - Duke Energy Employee Advocate

News - September 2001

"It's not that I'm so smart - it's just that I stay with problems longer." - Albert Einstein

The Real Enemy

The Charlotte Observer - September 15, 2001

A just America must not retaliate against the innocent

Not long after the airliners crashed into the World Trade Center on Tuesday, the principal of Charlotte Islamic School answered the phone. "We're going to get you," the anonymous caller said. "We're going to get you." The principal sent the 30 students home and called the police.

That threatening phone call was an ugly act unworthy of America. Whoever may be responsible for the terrorist attacks, it is not the teachers and children at Charlotte Islamic School. The caller was using a form of terrorism, attempting to create fear and divisiveness by threatening the innocent.

In this time of grief and rage, it's important to keep in mind the values that make America exceptional. We believe in the freedom and responsibility of every person. We do not blame groups for wrongs done by individuals. We do not punish the innocent as retribution against the guilty.

What does that mean? This, for one thing: As investigators focus on Islamic zealots with ties to the Mideast, it is un-American to blame everyone of Islamic faith and Middle Eastern heritage. That would be as thoughtless and unjust as blaming all decorated Army combat veterans because one of them, Timothy McVeigh, bombed the federal building in Oklahoma City, or blaming all pro-life Christians because a fanatical few have murdered doctors who perform abortions.

EEOC Sues Morgan Stanley Dean Witter

L. A. Times - By THOMAS S. MULLIGAN - September 13, 2001

NEW YORK -- A federal agency Monday filed a sex discrimination suit against brokerage giant Morgan Stanley Dean Witter & Co., accusing the firm of failing to fairly promote and compensate women, including a $1-million-a-year bond saleswoman fired last October.

The Equal Employment Opportunity Commission, which enforces federal job-discrimination laws, took the action in a case originally brought in November 1998 by Allison Schieffelin, 39, who claimed that she was denied a promotion because of her gender and was paid less than men of similar rank.

The EEOC also accused Morgan Stanley of firing Schieffelin in retaliation for filing the discrimination complaint. It is the first major sex discrimination suit that the agency has brought against a Wall Street securities firm, officials said at a news conference in Manhattan on Monday.

In a year when the securities industry is reeling from collapsing stock prices and accusations of conflicts of interest on the part of brokerage analysts touting shares, the suit is another blow to Wall Street's image.

The EEOC said that Morgan Stanley's bias extended to as many as 100 other women whom it did not name but who, like Schieffelin, have worked in the firm's institutional equity division.

The brokerage excluded women from social events, including golf outings and at least one trip to Las Vegas, at which they could have furthered their careers by cementing ties with clients, according to the EEOC complaint.

Schieffelin, who earned $1.35 million in 1998 as a manager in Morgan Stanley's convertible bond department, said that despite receiving highly favorable job performance ratings she repeatedly was denied the coveted and even more lucrative position of managing director.

Morgan Stanley replied in a statement that it "flatly rejects the EEOC contentions that Schieffelin was discriminated against." The firm said she was the highest-paid salesperson on her desk and that the job she claims she was denied because of gender bias in fact went to another woman.

Schieffelin was fired, the firm said, "after she initiated an abusive confrontation with her boss--the woman who got the job she is suing for."

Schieffelin and the commission rejected the brokerage's view of events, calling it a pretext, and noting that her boss, Gay Ebers-Franckowiak, was promoted a year after Schieffelin filed her complaint.

Once Schieffelin filed her suit, she said her bosses began to freeze her out of contact with clients, disparage her to other employees and give her poor performance evaluations.

"I believe that they thought if they made my day-to-day life miserable enough, I would just go away," she said at Monday's news conference.

"Ms. Schieffelin's case underscores a long-standing, endemic problem that has plagued the securities industry for more than two decades," EEOC Chairwoman Cari Dominguez said Monday.

"Despite increasing numbers of women pursuing careers on Wall Street today, many continue to face exclusionary barriers that impede their professional growth and their advancement to the highest levels of the industry," she said.

More than 95,000 women work in the U.S. securities industry, according to a 1999 survey by the Securities Industry Assn. About 9.6% of the top-paying jobs, including investment banking and related businesses, are held by women, the association said.

"There's a pretty consistent pattern of women in the brokerage industry facing discrimination," said Paul Mollica, partner in the Chicago law firm of Meites Mulder Burger & Mollica, which represents 198 female brokerage employees at U.S. Bancorp Piper Jaffray now trying to gain class-action status for their discrimination complaint.

Merrill Lynch & Co. and rival Smith Barney, now a unit of Citigroup, in 1998 both settled high-profile gender discrimination and harassment cases involving hundreds of female employees.

A Long Island, N.Y., Smith Barney branch became notorious for a basement "boom-boom room" where male employees allegedly harassed women co-workers at raunchy parties.

To be sure, such claims abound outside the brokerage industry. Mitsubishi Motor Manufacturing of America Inc., which faces an age discrimination suit for firings at its Normal, Ill., plant, three years ago paid $34 million to more than 300 women to settle one of the largest gender discrimination cases ever filed.

But the securities industry for years was insulated from litigation on discrimination grounds because employees had been required by the New York Stock Exchange and National Assn. of Securities Dealers rules to settle such disputes through arbitration rather than in court, Mollica said.

EEOC investigates hundreds of discrimination cases but joins lawsuits in only a tiny number, he said.

In a statement at the news conference, Schieffelin described herself as so loyal she "bled Morgan Stanley blue."

But in her complaint, she also described a workplace rife with sexist comments and jokes and where her supervisors regularly organized trips to topless bars and strip clubs, pointedly excluding her and sometimes inviting her own clients.

Agency officials said they were reluctant to bring the suit against Morgan Stanley, but felt compelled when the firm declined to cooperate with its investigators. At one point, the commission had to ask a federal judge to order Morgan Stanley to comply with a subpoena, Grossman, the commission's lawyer, said.

"Wall Street will be a different place for women now that Ms. Schieffelin has come forward," Grossman said. Agency investigators heard complaints from many women who said they had encountered "barrier after barrier" at the firm.

Before filing her suit in 1998, Schieffelin said she wanted to believe that gender discrimination was "a thing of the past."

"Women are still almost entirely excluded from the most important and powerful jobs at Morgan Stanley," she said.

Wal-Mart Lawsuit

Associated Press - September 12, 2001

Two former Wal-Mart employees on Monday filed a lawsuit asserting that the discount chain systematically required employees to work unpaid overtime and threatened to fire those who complained about it.

The lawsuit, filed in King County Superior Court, seeks class-action status on behalf of all current and former employees of Wal-Mart's 30 Washington state stores.

Plaintiffs Tamra Moore of Snohomish County and Debra Barnett of King County accuse the chain of keeping employees locked in the store for hours, without pay, until managers had completed checks of every department.

The lawsuit also claims that employees were often required to skip meal breaks and rest periods, work overtime and attend meetings and training sessions, all without being reimbursed. It says employees were pressured to do so through intimidation and threats they would be fired.

Rob Phillips, spokesman for Bentonville, Ark.-based Wal-Mart, said the company had not seen the lawsuit and could not comment specifically on the charges. But he defended the company's pay policy.

``Our policy, which we strictly enforce, is to pay all of our associates for all of the time that they work,'' Phillips said.

The plaintiffs are seeking back pay, plus overtime, for each hour they were required to work, but say they were not paid.

Similar lawsuits are pending in New York, Indiana, Louisiana, Nevada, New Mexico, Ohio, Texas, California, Iowa, Oregon, Georgia and Kentucky, according to Tousley Brain Stephens PLLC, one of the law firms representing the plaintiffs.

Phillips confirmed that several similar suits were pending in other states."

'Off-the-Clock' Work

Seattle Times - By Jake Batsell - September 11, 2001

Two former Wal-Mart employees from the Seattle area have sued the discount retail giant, claiming store managers routinely make employees work off the clock.

In a lawsuit filed yesterday in King County Superior Court, Debra Barnett, a former cashier and customer-service manager at the Auburn Wal-Mart, and Tamra Moore, a former cashier at the Lynnwood store, contend they regularly were required to clock out and return to work.

Their complaint is the latest in a flurry of similar lawsuits filed recently against the Arkansas-based retailer, the nation's largest private employer.

"I really wanted to stay with the company," Barnett said yesterday. "I wanted to be an assistant manager eventually, (but) the only way I could do that is work off the clock."

Barnett and Moore are seeking back pay for each uncompensated hour they worked and class-action status for the lawsuit, which their attorneys said could cover thousands of Washington Wal-Mart employees.

The Bentonville, Ark.-based retailer runs 30 Wal-Mart stores and two Sam's Clubs in Washington, employing roughly 8,900 people statewide.

Wal-Mart spokesman Rob Phillips said the company had not yet seen the Washington suit, but "our policy, which is a strict one, is to pay all of our associates for all the time that they work."

The company plans to vigorously defend itself against the Washington suit and similar ones in Wisconsin, New York and other states, Phillips said. Wal-Mart officials also are investigating whether managers violated company policy, he said.

Any managers who forced employees to work off the clock will be subject to immediate disciplinary action, Phillips said, including termination.

In their suit, Barnett and Moore claim they were forced to work through lunch and rest breaks. Moore also claims she and other employees were often locked inside the Lynnwood store after closing time and required to work off the clock until a manager unlocked the store.

Beth Terrell, an attorney with the Seattle law firm of Tousley Brain Stephens, said Wal-Mart has a system in which managers are rewarded with bonuses for lowering overhead, effectively encouraging them to understaff stores. When harried workers cannot complete all their duties during their regular shift, Terrell said, they are forced to punch out and continue working but are discouraged from recording the extra hours.

At the Auburn store, the suit contends, a manager would single out workers who had claimed overtime by posting their names next to the time clock as an admonition.

"They create a situation where you can't get your job done unless you work overtime, and then they reprimand and humiliate you if you do (claim overtime)," Terrell said.

Barnett, who worked for the Auburn store from October 1996 to March 1999, said that when she was the customer-service lead, she often had to take work home and was required to conduct monthly cashier meetings she wasn't paid for.

"You couldn't record over 40 hours," she said.

Wal-Mart managers are rewarded for keeping costs down, and the company tries to emphasize that workers complete their duties during regular shifts, Phillips said.

If workers do put in overtime hours, Phillips said, company policy dictates they should be paid "for every minute." "We ask a lot of all our associates and particularly our associates at the store levels," Phillips said.

"But in no case would we want their performance to be outside the boundaries of our company policies."

In December, the state Department of Labor and Industries announced it would begin directly managing workers' compensation claims filed by Wal-Mart employees in Washington.

Labor and Industries investigators found that Wal-Mart was preventing workers from receiving benefits they were entitled to for on-the-job injuries.

Wal-Mart has appealed that decision.

Rich Ervin, acting director for the state agency's Employment Standards Program, said he was unaware of any state-issued penalties against Wal-Mart for off-the-clock violations.

Wal-Mart, whose net sales totaled $191 billion last year, has been the target of a variety of labor-related lawsuits in recent months.

In June, six women sued the company, alleging that female workers are systematically discriminated against at Wal-Mart and Sam's Club stores.

A lawsuit against Wal-Mart in Colorado was settled in November for more than $50 million, according to Bloomberg News. Workers there claimed they were required to work off the clock.

When It Rains, It Pours

Employee Advocate - - September 11, 2001

The Associated Press reports that North Carolina is shifting the tax burden from the wealthy and corporations to working people. Thanks. We needed that.

This development will fit right in with the loss of retirement benefits and the shaky future of Social Security.

Dan Gerlach, director of the N.C. Budget & Tax Center, said: "It increases the unfairness to low- and moderate-income workers"

It is said that when it rains, it pours. But it seems like we are standing under Niagara Falls!

Big Money Attracts Deception

Employee Advocate - - September 10, 2001

Peter Maas (Parade Magazine) wrote the story about Ms. Elouise Cobell, of the Blackfeet Indian Tribe, and her fight to secure money the US government owes her people. Whether it’s pension funds or Indian lands, where a lot of money is involved, trickery and deception often follow.

In 1887, the government took control of the property rights of American Indians. The government was going to handle the details and the Indians were to receive income from the use of their land. The government has been handling the details and the Indians have been getting little, or nothing.

They may be owed as much as $40 billion dollars! One court called the arrangement “a shocking pattern of deception.”

Milestone at Indian Bureau Comments

Police and Employer Corruption

Employee Advocate - - September 9, 2001

Dana Canedy (The New York Times) has reported the details of the scandal involving Miami police officers. Unarmed citizens were executed by officers and guns planted at the scene. An innocent, unarmed 73-year-old man was killed in his bedroom in a hail of 123 bullets! That death resulted in a $2.5 million lawsuit settlement.

Across America, there are also those in management willing to conspire against employees. No, your life probably will not be taken, only your employment. But the general tactics are the same. It only takes a few people in the right places to orchestrate certain “events.”

No corporation in its right mind would want such individuals in the ranks of management. If for no other reason, they would not welcome the exposure to wrongful discharge litigation. Do you think that Miami is proud to have the conspiring officers on the force? But it is a fact of life that some unsavory individuals do infiltrate the ranks of police departments and management.

What can an employee do to protect himself from such situations? Keep good records. If necessary, do not hesitate to take action to expose the guilty parties. Those who have filed charges with the Equal Employment Opportunity Commission, such as a cash balance age discrimination charge, have additional legal remedies. It is a violation of federal law for an employer to retaliate against an employee for exercising his legal right to file a charge. The EEOC stands ready to assist you in filing a retaliation charge against the offending employer, at no charge (1-800-669-4000). Just do not get distracted and let the filing time period expire!

Most people in management positions are only trying to do their jobs. They may make errors in judgement, but do not conspire against employees. A few duds will always slip in, whether in the police department or corporate management. Be ever vigilant to deal with those as the situation warrants.

Rebels in Black Robes Rock

Employee Advocate - - September 7, 2001

“Rebels in Black Robes” was the title of an article by Jason Hoppin (The Recorder) about federal judges who are incensed about having their internet use monitored. The 9th U.S. Circuit Court of Appeals shut down the Internet monitoring of the court. In an update to that article, Mr. Hoppin reports that support for the action of the 9th Circuit apparently in increasing!

Edith Jones, Fifth Circuit Judge, has written that almost every member of her court has criticized the Internet monitoring.

Alex Kozinski, 9th Circuit Judge, sent a blistering letter to The Wall Street Journal criticizing Internet monitoring.

If federal judges cannot fight against tyranny, who can? Everyone can: judges, citizens, and employees.

The link below is to a related article:

Federal Judges Do Not Like Internet Snoops

Who would work for free?

Seattle Times - By Alwyn Scott - September 2, 2001

As you celebrate Labor Day tomorrow, here's some sobering news: Washington residents give their employers well over $13 million a year in free work.

The unpaid labor, reported on thousands of state and federal claims every year and verified by government agents, comes from white-collar and blue-collar workers alike: design engineers, truck drivers, counter help, clerks. It slips away in uncounted overtime, work performed off the clock and illegal deductions that whittle away a worker's pay. Most of the lost money never gets collected. Last year, government agents persuaded employers in the state to fork over $5.8 million — less than half of what they determined was owed. And many violations are never reported.

Employee benefits are under attack, too. The use of contract workers to replace staffers who received vacation, health and retirement benefits grew fivefold in the 1990s. By one estimate, contract workers in Washington state forgo $200 million in such benefits every year.

Working longer and harder to get ahead is part of the American work ethic, of course. But despite hard-fought battles to enshrine the 40-hour week and minimum wage in law, one in four men and one in 10 women now work more than 50 hours. And many employees — even white-collar workers — still don't know or insist on their rights.

White-collar overtime?

Dan Drinkwitz was one of these. An engineer at the Mukilteo office of a torpedo maker, he was required to work 40 to 45 hours a week without overtime pay. But if he worked less, he had to make up the time or his vacation was docked. The company, Alliant Techsystems, argued Drinkwitz and other engineers in his group were salaried professionals exempt from overtime.

So Drinkwitz sued. Last year, the state Supreme Court found that Alliant treated salaried engineers like hourly workers.

By imposing a rigid workweek and penalizing them when they failed to work the required number of hours, the company made them hourly in the eyes of the law — and entitled to overtime. Damages haven't been determined in the case, and the two sides are still in talks on a settlement. But Alliant, based in Hopkins, Minn., is potentially liable for thousands of dollars in back wages owed to several hundred workers the company employed in Washington from 1993 until it sold the unit in 1995. Alliant declined to comment.

The decision burnishes Seattle's image as a hotbed for labor issues, but critics say it also muddied the law. Employers who allow salaried workers to take a day off and pay it back later, for example, now risk having salaried staff classified as hourly.

Martin Garfinkel, a Seattle labor lawyer, says the courts have more work to do in defining the rules. "There's a lot of misunderstanding among employers," he says. "They think that if they put people on salary, they're exempt from overtime. But it's not true."

Nevertheless, the decision may encourage other white-collar workers to demand overtime. Emboldened by the booming 1990s economy, workers have won more than $135 million this year in settlements from Rite-Aid, U-Haul, Farmers Insurance and Taco Bell, which claimed employees were exempt from overtime.

Starbucks managers recently filed two suits alleging, as is typical in these cases, they were called "managers" and asked to work extra hours without overtime pay even though they spent relatively little time supervising others. Starbucks has denied wrongdoing.

Salaried employees aren't the only ones fighting for a 40-hour week. At the University of Washington, nearly 250 unionized clerical workers contend they are illegally denied overtime. "The University docks their pay if they miss work, but won't compensate them for extra hours worked," says classified staff union president Rene DeVine.

Computer workers, too, are not entitled to overtime if they earn more than $27.63 an hour, under a state rule enacted in 1998. That can cause abuse, even if it's unintentional, workers say. "Managers often don't know that we're understaffed," says Margaret Bartley, a programmer for King County, who is part of a union. "That means I have to put in (unpaid) overtime."

Long-term "temps"

While staff employees fight to get paid for their hours, temporary and contract workers are fighting to win vacation, health and pension benefits.

Susan Coles won $35,000 as part of a settlement with King County. Coles worked at the Metro bus company before the county absorbed it in 1994. She went through training with Metro staffers and worked alongside them. But Metro never hired her. Her paycheck came from Bellevue-based Nelson Coulson & Associates, a staffing company.

Still a "temp" after five years, she sued the county, saying she had not received benefits granted to staff people doing similar work.

"It was very discouraging," she said. "They treated us like employees the whole time we were there, but put this label on us that we were contractors." Last year, King County agreed to pay $18 million to more than 500 workers.

Such "payrolling" is a huge growth industry in America. Revenues of employee-leasing companies grew to $33.8 billion last year from $6.5 billion in 1993, according to a report released today by the Center for a Changing Workforce, a Seattle-based research organization.

Payrolling companies, also known as professional employer organizations, typically save employers 10 percent to 15 percent of the cost of a worker by cutting out benefits. According to the study, 95 percent of payroll companies don't provide basic paid health or retirement plans. Instead, many sell worker-paid plans, which the companies themselves administer and profit from.

"This industry promises that the employees will have benefits, but in reality it's a hollow promise," says David West, the center's director.

Last year, Washington courts awarded $115.7 million in unpaid benefits to thousands of workers, including nearly $97 million to more than 10,000 "permatemps" at Microsoft who filed a class-action suit.

"All these payrolling companies are doing is acting as a conduit to keep employees off the real employer's payroll," says Judith Bendich, whose law firm represented the Microsoft workers…

Verizon Employees Plan Lawsuit

Employee Advocate - - September 1, 2001

Verizon middle managers are enraged that the company plans to reduce their retirement benefits next year. They are having two meetings with The Helein Law Group to plan a lawsuit against Verizon.

Trademark Holders and Domain Names

Employee Advocate - - September 1, 2001

Shannon P. Duffy (The Legal Intelligencer) reports that a federal judge has ruled that trademark rights do not automatically entitle the holder to the domain name. In the case Strick Corp. v. Strickland, the Strick Corp. attempted to bar James B. Strickland the use of the domain name “”

The judge ruled that Internet users aren’t likely to be confused by the domain name.

News - August, 2001