From California Labor and Employment Law Review, Vol. 28, No. 2, March 2014
Message From the Chair
By Carol Koenig
As I was thinking about the Message for this issue of the Law Review, numerous topics drifted through my brain. Unfortunately, those ideas were not interesting enough, were not sufficiently related to employment law, were not timely, or were too political.
A few topics kept creeping back, no matter how hard I tried to push them away. My deadline for submission is about seven weeks before publication. That means mid- January for this particular Message-- which may explain why the topics that kept coming to mind were the 50th Anniversary of President Lyndon Johnson's War on Poverty; Martin Luther King's dreams of a country where little children do not grow up poor; a story I read recently about the more than 50,000 Iraq and Afghanistan veterans who are homeless (and jobless); and the push by some in Congress to raise the federal minimum wage. My brain kept telling me to ignore these topics, as they were too controversial. But, my heart disagreed. I think it was that battle between the heart and brain that kept an interesting, nonpolitical topic from surfacing.
I was struggling with this "topic" dilemma while walking back to my hotel room from the State Bar offices in San Francisco recently. I had been in the "drafting" stage for a few weeks. I had started and stopped several times--and was beginning to feel like an old car engine that starts, runs for a bit, then sputters and stalls. You can keep starting it, but you are not going to get anywhere very fast. And, if you do finally get wherever you were going, you are going to be very late.
I had been at the State Bar offices for the opening session of one of our section's annual programs, The Nuts and Bolts of an Employment Practice. I was impressed both by the attendance and by our panel of attorney speakers. The State Bar's conference room was overflowing with current and aspiring employment lawyers, eager to learn more about the ins and outs of our area of practice. The attendees were a diverse group in terms of age, gender, ethnicity, and employment law experience. The speakers were equally impressive and diverse: Michael Whitaker (government attorney), Cara Ching- Senaha (management-side attorney), Eileen Goldsmith (labor attorney), Andrew Freidman (plaintiff attorney) and Amy Oppenheimer (mediator/ arbitrator/workplace investigator).
The program started with each speaker revealing why they liked the practice of employment law. Andrew said he liked helping people rather than corporations. Cara replied that she liked helping the people who ran the corporations, explaining that corporations need to stay financially healthy for the good of the economy and of the people they employ. Protecting workers, bringing fairness to the workplace, and working with people were also mentioned by Michael, Amy, and Eileen, along with enjoying the intellectual challenges of the job.
I reflected about what they had said as I walked back to my hotel and wondered if I should write about the joys of being a labor and employment lawyer. An involuntary (and quite audible) chuckle burst forth from me at the thought of using "joy" to describe my job--causing a couple walking toward me to look at me rather strangely and to give me a wider than normal berth as they passed. Still, I was not quite ready to let go of the idea of writing about our area of practice. As labor and employment lawyers, our jobs are always challenging, now and again rewarding (sometimes extremely so), often stressful, frequently frustrating, usually demanding, intermittently entertaining, and occasionally tedious, but never boring. (Well, sometimes we may be momentarily bored when someone with whom we must deal drones on and on about nothing of real importance-- apparently enthralled with the sound of his or her own voice.)
Of course, being an employment lawyer also can be financially rewarding (more so for some than for others). However, for most of us, whether we represent management or labor, employer or employee, it is not the money that keeps us going, but knowing that our work is important. Regardless of which kind of employment or labor law we practice, or which "side" we represent, we all have the same essential function: We try to make the relationship between people and employment work. This work is important because, unless someone is independently wealthy (or has a relative who is), the employment relationship is likely to be the single most important factor in determining whether that person lives under, at, or above the poverty level.
Maybe this revelation is obvious, but I did not become fully cognizant of it until I was walking back from the State Bar office that sunny January day. I passed homeless person after homeless person. Some were old, some were young; there were men and women, even some children. Some looked relatively healthy; others looked as if a hard life on the hard streets had taken its toll. I thought about the nearly 50,000 homeless and jobless Iraq and Afghanistan veterans.
As I passed the first few homeless people sitting, lying or standing on the street, I reflecting on their plight and felt impotent to do anything about it. Then, I remembered the wad of one dollar bills I had stuffed in my shoulder bag that morning. I begin dropping one in each Styrofoam cup or tin can that I passed. But, even on that short walk, I ran out of dollar bills long before I ran out of homeless people. I daydreamed for a few minutes about winning the lottery and having enough money to fund some sort of business that could give them all jobs. Yes, I know, that was naïve and unrealistic.
Finally, my brain made the link for which I had been searching-- the link between Johnson's War on Poverty, Martin Luther King, homeless veterans, the minimum wage, and labor and employment law.
Although the War on Poverty has been declared a failure by many, most economists agree that the actual poverty rate has decreased from above 25% in the 1960s to about 16% today. Social welfare programs such as unemployment insurance and food stamps have hugely improved the living conditions of millions of lowincome Americans. Infant mortality has dropped; the college completion rates of low income youths have soared; and malnutrition of the poor has decreased dramatically. But, with more than 46 million people living in households where their income is barely adequate, we still have a long way to go.
How we get there is the difficult question. I certainly do not have the answer. The mixed results of the War on Poverty suggest that simply pouring trillions of dollars into social welfare problems is not the solution, nor is cutting off the welfare programs. Millions of people go to work every day (sometimes to two full-time jobs) and they still are at, or barely above, the poverty level. For the poverty rate to decrease, the wages (or at least the buying power) of low-income workers have to improve. President Obama has acknowledged this in his push for an increase in the minimum wage.
As expected, there is much controversy about this push. The anti-increase advocates point to studies that show the number of jobs decrease (and prices increase) with each increase in the minimum wage. The pro-increase advocates dispute the accuracy of these studies. However, leading economists on both sides of the minimum-wage debate seem to agree that an increase in the minimum wage leads to a decrease in the poverty rate. For example, University of Massachusetts economist Arin Dube, a proponent of a minimum wage increase, conducted a comprehensive study of the effects of past wage increases on the poverty rate. Based on this study, he predicted that a 10% increase in the $7.25 minimum wage would cause the poverty rate to drop approximately 2.4%. David Neumark, another leading economist and an opponent of raising the minimum wage, found that a similar increase in the minimum wage would decrease the poverty rate by approximately 2.9%. In addition, there is little dispute that such an increase would result in a significant economic boost for the bottom 30% of wage earners.
So, how does this all fit into our jobs as labor and employment lawyers? Throughout the years, labor lawyers have helped labor unions win decent wages, reasonable hours of work, safe working conditions, affordable health care, and fair work rules for working people. By doing so, labor unions (and their lawyers) have helped raise the standard of living for all employees--not just those in a union. Employment lawyers have done the same for their non-union clients, and together, these lawyers continue to fight for a discrimination-free, fair-paying, safe, and just workplace for all employees-- goals that reduce the poverty rate and that were an integral part of Martin Luther King's dream.
Management-side lawyers in both union and nonunion workplaces also play a role in fulfilling the dream. Most employers are willing to pay a decent wage, provide a safe workplace, treat employees well, and stay within the law. But, they also want to keep their companies healthy. That's important because without healthy businesses, there would be no one to provide good jobs with decent wages. Good companies need attorneys to educate them about the law, protect them from trade secret violations and frivolous lawsuits, and lead them through the process of releasing incompetent or dishonest employees in a fair and humane way.
As employment lawyers, we cannot solve the unemployment and poverty problem, or bring about the full realization of Martin Luther King's dream, but we just might be able to make a small dent in it by keeping the bigger picture of what we do in mind now and then.