Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Labor Law’

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Tuesday, July 10th, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Janus Is Here—But Don’t Ring the Death Knell for the Labor Movement

Wednesday, June 27th, 2018

In a major decision that will impact labor for decades, the U.S. Supreme Court has just declared that all public-sector workers who are represented by a union have a Constitutional right to pay the union nothing for the representation.

The Court overturned its landmark 1977 decision in Abood v. Detroit Board of Education, which permitted public-sector unions to charge fair-share fees that covered the costs of providing collective bargaining and contract administration to non-members that were represented by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amendment prohibits public employee unions from charging a mandatory fee for the costs of representation. Therefore, going forward, all public-sector employees will be under so-called “right to work,” the union-busting legal framework that denies unions the ability to charge workers dues. This decision will directly and indirectly impact how unions are structured, how they engage with their members and objectors, how they organize and educate and how they are funded. But this decision will not destroy, defund or decimate labor.

First off, the Janus decision will only directly impact less than half of the labor movement. This is because the ruling only applies to public-sector workers: federal, state and local government employees. However, federal employees (including postal employees) have long been under so-called “right to work,” so Janus will have minimal direct impact on them. Furthermore, many state and local public-sector workers are already in “right to work” states, so this ruling will have no effect on them. This is not to say that the whole labor movement will not be negatively impacted by a decline in membership among public-sector unions, but it is important to remember that Janus will not place all union members under “right to work.”

It is difficult to predict what effect Janus will have on union membership overall. There is a good chance there will be at least some decline in membership, thanks to the free-rider problem: the likelihood of some workers who are not opposed to the union choosing to pay nothing simply because they can get something for nothing. However, state-level data on the decline of union membership following the passage of state “right to work” laws is not necessarily a good predictor of what will happen after Janus, because most of the state laws are a mixture of anti-worker laws that include “right to work.” For example, in Wisconsin, union membership declined 38 percent  between 2010 (the year prior to the passage of Act 10) and 2016. However, Act 10 contained a host of other provisions, such as the elimination of collective bargaining for public-sector workers.

Following Janus, unions will now have to fight for every union member to ensure they choose to remain members and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and other anti-union cases, will mount a nationwide campaign to get members to quit the union. Many labor unions that have not been strong in engaging their membership will have to keep up a constant level of contact and organization to maintain their memberships or risk losing big. They will have to make the case to members why they should stay with the union and pay dues, and they will have to make that case often.

Unions are considering a number of options for getting state laws changed, or changing internal policy, to adjust to Janus. New York passed a law in anticipation of Janus, which other states are considering, that would allow unions to deny or charge for some services, such as grievance representation. Some states are considering laws that would require workers who are not members of the union to pay for representation in grievance procedures. This approach would have the benefit of discouraging free-ridership by not providing the full benefits of membership to those workers who choose not to join. However, it carries the danger of turning unions into pay-for-service organizations that will find themselves turning away workers in their time of need.

Labor law professor Samuel Estreicher has proposed an interesting approach that unions could take that would reduce the rate of possible free-riders, not require legislation, and not require unions to turn away non-paying workers. Estreicher argues that unions should require workers who choose not to pay their union dues to instead donate the money to a 501(c)(3) charity. Unions already permit religious objectors to take this route, and Estreicher suggests expanding the program to any objectors. Since this approach would require all workers to pay an amount equivalent to their dues—but would let them decide if the recipient was the union representing them or a charity—it would separate the true objectors from the free-riders.

The allowance of fair-share fees, in both the public and private sector, was in part intended to promote labor peace, and the imposition of “right to work” may lead to more strikes and labor unrest. The massive teacher strikes this year in West Virginia, Kentucky, Oklahoma, Arizona, Colorado and North Carolina have all taken place in “right to work” states, and this commonfact was likely no coincidence. Workers in “right to work” states tend to have lower salaries and fewer benefits. Meanwhile, unions are weaker, possibly because they serve as a moderating force to avoid direct—and often illegal—confrontation. These effects from “right to work” can create an environment where workers’ frustration grows, they have few options to better their situations without direct action, and they organize at a grass-roots level. After Janus, with “right to work” becoming the new rule for all public-sector workers, there may be a break from a long period of U.S. history when strikes have been rare.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.
This article was originally published at In These Times on June 27, 2018. Reprinted with permission. 

Divide and Conquer: Employers' Attempts to Prohibit Joint Legal Action Will be Tested in Court

Thursday, September 28th, 2017
On Monday, October 2, the U.S. Supreme Court will hear arguments in the most consequential labor law cases to come to the Court in a generation, which could fundamentally alter the balance of power between millions of American workers and the people who employ them.

So why are so few people paying attention?

At first glance, the cases may seem dry and complex, as they involve 80-year-old laws that most people have never heard of. But the issue at stake is actually quite simple: should your employer be able to force you to give up your right to join your coworkers in a lawsuit challenging working conditions as a condition of getting or keeping a job?

The federal courts of appeals for the Seventh and Ninth Circuits say the answer should be no. They point to the National Labor Relations Act (NLRA), a law passed by Congress in 1935 to end “industrial strife and unrest” and restore “equality of bargaining power between employers and employees.” The NLRA gives workers the right to join unions and to “engage in other concerted activities” for “mutual aid or protection,” and it makes it illegal for employers to “interfere with, restrain or coerce employees in the exercise” of those rights.

But in recent years, more and more employers are requiring their employees to agree, as a condition of working for that employer, that they must resolve any disputes that might come up in the future in a private arbitration proceeding, and not in court. Many of these so-called arbitration agreements also prohibit the arbitrator from hearing more than one employee’s claim at a time—in other words, they ban employees from taking legal action together, either in court or in arbitration. A recent study from the Economic Policy Institute found that 23.1% of private sector, non-union workers, or 24.7 million Americans, work for employers that impose such a concerted legal action ban.

Sheila Hobson was one such employee. She worked at a gas station in Calera, Alabama that was run by Murphy Oil. When she applied to work there, she had to sign an agreement stating that she would not participate in a class or collective action in court, “in arbitration or in any other forum” and that her claim could not be combined “with any other person or entity’s claim.” Two years later, she joined with three coworkers to file a lawsuit under the Fair Labor Standards Act. She and her coworkers claimed that they were routinely asked to clean the station, stock shelves, check prices at competitors’ stations and perform other tasks while “off the clock” and without pay. Murphy Oil moved to dismiss the lawsuit, pointing to their arbitration agreement and arguing that each employee had to pursue their claims individually.

The National Labor Relations Board, a federal agency created by Congress to enforce the NLRA, stepped in to defend Ms. Hobson and her coworkers. The NLRB ruled that Murphy Oil’s arbitration agreement interfered with its employees’ right to engage in concerted activity for their mutual aid or protection in violation of the NLRA. But the Court of Appeals for the Fifth Circuit agreed with Murphy Oil, leading to this showdown before the Supreme Court.

The crux of Murphy Oil’s position, which is shared by the employers in the cases out of the Seventh and Ninth Circuits that are also being argued on Monday, is that the employers’ bans have to be enforced because of the Federal Arbitration Act. This law, passed back in 1925 at the request of businesses who wanted to be able to resolve commercial disputes privately under specialized rules, says that agreements to arbitrate should be treated the same as any other contracts. And because their concerted action bans are found in arbitration agreements, the employers argue, the FAA requires their enforcement.

But the FAA includes a “saving clause” that allows arbitration agreements to be invalidated on any “grounds as exist at law or in equity for the revocation of any contract.” One such ground for revoking a contract is that it is illegal, and the Seventh and Ninth Circuit opinions pointed out that a contract that interferes with employees’ rights under the NLRA is illegal and thus unenforceable under the FAA’s saving clause. Moreover, as the NLRB explained, the Supreme Court has repeatedly held that the FAA cannot take away anyone’s substantive rights; it merely allows those rights to be pursued in arbitration rather than in court. But the concerted action bans in these cases, and those like them that other employers force employees to sign, do take away the very substantive right to join with coworkers that the NLRA guarantees. By preventing workers from banding together in court or in arbitration, these agreements deprive employees of the ability to pursue their concerted action rights in any forum whatsoever.

Given the high stakes these cases present, both employer and employee positions have garnered a large number of friend-of-the-court briefs before the Supreme Court. The Chamber of Commerce has weighed in on the employers’ side, as have other groups representing industry and the defense bar. The Justice Department, which had originally represented the NLRB, switched sides with the change in presidential administration and is also supporting the employers.

Meanwhile a group of ten labor unions pointed out that given the economic power employers wield over employees who need jobs to support their families, “few workers are willing to put a target on their back by bringing legal claims against their employer on an individual basis.” The NAACP Legal Defense Fund and more than 30 other civil rights groups, including Public Justice, explained how joint legal action has unearthed patterns of discrimination and brought about systemic changes in workplace policies that individual cases could never have achieved, listing 118 concerted legal actions challenging discrimination based on race, gender, age, disability and sexual orientation that would not have been possible under concerted action bans like Murphy Oil’s. The National Academy of Arbitrators disputed the employers’ premise that joint or collective claims can’t proceed in the more streamlined forum of arbitration, noting that labor arbitrators have been resolving group claims in unionized workplaces for decades and that requiring each case against the same employer – with the same evidence – to proceed separately would actually be far less efficient and more costly. Finally, the Main Street Alliance argued that concerted action bans reduce enforcement of minimum wage and employment discrimination laws, which disadvantages responsible businesses relative to corporations that mistreat employees and break the law.

With nearly a quarter of U.S. non-union employees already subject to concerted action bans, a green light from the Supreme Court telling employers to continue this practice will no doubt cause that figure to soar. But Public Justice is hopeful that the Court will follow the plain meaning of the NLRA and find these bans to be the illegal acts that they are—attempts to coerce employees into giving up their right to join forces to increase their bargaining power. That right applies equally whether employees want to join a union, join a lawsuit or join a boycott or picket line. The Supreme Court should stop this employer power grab and reaffirm the right to concerted activity, which is just as important for workers now as it was when Congress established it over 80 years ago.

This article was originally published at Public Justice on September 28, 2017. Reprinted with permission.

About the Author: Karla Gilbride joined Public Justice in October 2014 as a Cartwright-Baron staff attorney. Her work focuses on fighting mandatory arbitration provisions imposed on consumers and workers to prevent them from holding corporations accountable for their wrongdoing in court.

Trump is about to make America much crueler to unionized workers

Wednesday, August 2nd, 2017

Since Election Day, unions have lived on borrowed time. The National Labor Relations Board (NLRB), which has exclusive authority over many key questions of labor law, is still controlled by Democrats?—?thus shielding workers and their unions from attacks that became far likelier the moment Donald Trump was declared the winner of the 2016 election.

But this period of interregnum is about to end. Senate Majority Leader Mitch McConnell (R-KY) began the process of confirming the first of Trump’s two nominees to the NLRB on Monday. When both nominees sit on the Board, a swift rollback of union rights is likely.

As soon as this week, the Senate is likely to vote on Marvin Kaplan, the first of these two nominees. A former GOP Hill staffer, Kaplan drafted legislation—strongly supported by business lobby groups—which would have made it easier for employers to fight unionization campaigns.

Trump’s other nominee, William Emanuel, is a veteran management-side lawyer who touts his “particular expertise with laws concerning union access to the private property of employers.” He’s also filed briefs in three cases claiming that employers can force workers to waive their right to bring class actions and similar lawsuits.

The NLRB is an unusual agency that functions very much like a judicial body. It is the only agency that can enforce certain portions of federal labor law, which protects the right to unionize, to engage in collective action within the workplace, and to have one’s employer actually bargain with a union in good faith.

While the NLRB employs lawyers who investigate and prosecute certain violations of labor law, the board members themselves function much like judges?—?sitting on individual cases and handing down precedential opinions interpreting the rights of workers, unions, and employers.

In recent years, however, the Board has grown increasingly partisan. By design, it has five board members, and three of those seats are typically controlled by the party that also controls the White House. For this reason, the Board’s understanding of labor law often lurches to the left and then to the right as control of the presidency changes hands.

During the second Bush administration, for example, the NLRB determined that workers with fairly minimal authority over their co-workers count as “supervisors” under federal labor law?—?and thus do not enjoy a legal right to unionize. The Board’s current Democratic majority, by contrast, appears much less eager to strip employees’ collective bargaining rights by declaring them “supervisors.”

Yet, while partisanship has shaped the NLRB’s decisions for quite a while, if Kaplan and Emanuel are confirmed, the Board will have a Republican majority for the first time in the post-Tea Party, take-no-prisoners era of GOP politics that began shortly after the Obamas moved into the White House.

The new majority on the board is likely to confront, and possibly reverse, a number of Obama-era decisions on important matters such as whether graduate students with significant work responsibilities should be allowed to unionize.

But the GOP’s recent approach to unions suggests that the party will not be satisfied with simply rolling back union rights to where they stood in the Bush era. Last year, the Supreme Court came within a hair of defunding many public sector unions based on an aggressive reading of the First Amendment?—?the suit failed only due to Justice Antonin Scalia’s death, and a similar suit is likely to prevail soon now that Neil Gorsuch occupies Scalia’s seat.

Republican governors like Scott Walker crusaded against unions in their states. Senate Republicans even attempted to shut down the NLRB entirely during the Obama presidency?—?an action that would have rendered much of federal labor law unenforceable?—?by refusing to fill vacancies on the Board.

It is likely, in other words, that the NLRB’s incoming majority will push much harder against the right to organize than even President Bush’s appointees to the Board. They are creatures of a very different era.

This blog was originally published at ThinkProgress on August 2, 2017. Reprinted with permission.
About the Author: Ian Millhiser is Justice Editor for ThinkProgress and author of Injustices: SCOTUS’ History of Comforting the Comfortable and Afflicting the Afflicted. 

Working People Need to Know If We Can Trust Donald Trump’s NLRB Nominees to Protect Our Freedoms

Monday, July 17th, 2017

President Donald Trump chose two nominees for the National Labor Relations Board whose commitment to the freedom of working people to come together and negotiate is seriously in doubt. These two men, Marvin Kaplan and William Emanuel, have records of actively trying to strip working people of their freedoms.

Republicans are rushing to get these nominations through, but it is imperative that the Senate uses upcoming hearings and meetings to find out whether these nominees will side with working people or the richest 1% of Americans. NLRB decisions and actions have a real impact on the lives of working people, particularly the ability to join together with co-workers to advocate for positive change.

Of the nominations, AFL-CIO President Richard Trumka said:

Marvin Kaplan has never practiced labor law, and his experience comes from crafting legislation for politicians that rigs the rules against working people. William Emanuel has a long record of practicing labor law on behalf of employers, most recently at one of the most infamous union-busting law firms in the country. On their face, the resumes of both nominees appear to be in direct conflict with the mission of the NLRB.

Emanuel, a member of the staunchly anti-working people legal organization,  the Federalist Society, has extensive experience representing employers in collective bargaining, union elections and unfair labor practice proceedings under the National Labor Relations Act. Recently, he filed a brief before the U.S. Supreme Court arguing that employers should be allowed to require employees to waive their right to file class-action lawsuits or any other method of joining with others in seeking relief for rights violations. Emanuel has directly worked on numerous issues currently before the NLRB, raising serious questions about his ability to be impartial on those cases.

Kaplan hasn’t ever practiced labor law. His only related experience is in staffing a couple of Republican, anti-worker committees in Congress and helping run a series of oversight hearings criticizing the NLRB under President Barack Obama. He drafted legislation to overturn several NLRB actions that strengthened the freedom of working people join together. Like Emanuel, Kaplan has actively worked on numerous issues he would have to rule on if confirmed to the NLRB, calling into question his own impartiality on those cases.

This blog was originally published at AFLCIO.org on July 11, 2017. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars. Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History. His writings have also appeared on Daily KosAlternet, the Guardian OnlineMedia Matters for AmericaThink ProgressCampaign for America’s Future and elsewhere.

Viewpoint: A Smart Strategy to Defeat ‘Right to Work’

Wednesday, March 18th, 2015

Viewpoint: A Smart Strategy to Defeat ‘Right to Work’
March 17, 2015 / Rand Wilson

Rand Wilson

Without aggressive action, the right-to-work tsunami will sweep more states. “Just Cause for All” campaigns should be part of the strategy.

Wisconsin is now the 25th state to adopt a so-called “right-to-work” law, which allows workers to benefit from collective bargaining without having to pay for it.

It joins Michigan and Indiana, which both adopted right to work in 2012. Similar initiatives, or variants, are spreading to Illinois, Kentucky, Maine, Missouri, New Hampshire, New Mexico, and West Virginia—and the National Right to Work Committee and the American Legislative Exchange Council probably have a well-developed list of additional targets.

Without aggressive action, the right-to-work tsunami will sweep more states. To defeat it, the first step is committing to fight back, rather than resigning ourselves to what some say is inevitable.

Everyone’s Interests

We’ll have to go beyond what we’ve mostly been saying so far, which is that right to work is “unfair” or “wrong.”

That argument certainly works for most union households and many of our community allies. But the real challenge is to convince a much broader public that a strong (and fairly-funded) labor movement is in their interest and worth preserving. Clearly most Americans aren’t yet convinced.

Many unions over the last few years have undertaken important campaigns along these lines. For example, teachers unions have positioned themselves as defenders of quality public education. Refinery workers have struck for public safety.

Nurses and health care unions have fought for safe staffing to improve the quality of care. And most notably, the Service Employees (SEIU) and others have waged the “Fight for $15” for fast food and other low-wage workers.

In its own way, each union is working hard to be a champion of the entire working class. Yet with the exception of SEIU’s Fight for $15, each is essentially focused on the issues of its core constituency at work. This still limits the public’s perception of labor.

Supporters of right to work cynically play on the resentment many workers feel about their declining standard of living. Absent a union contract, the vast majority have few, if any, ways to address it. To most, organizing looks impossible and politics looks broken.

Workers’ understandable frustration is fertile ground for the far right, which promises to improve the business climate and create more jobs by stripping union members of their power.

Thus, when we anticipate right to work’s next targets, the best defense should be a good offense—one that clearly positions labor as a force for the good of all workers.

‘Just Cause for All’

Here’s one approach that would put labor on the offensive: an initiative for a new law providing all workers with due process rights to challenge unjust discipline and discharge, “Just Cause for All.”

Such a law would take aim at the “at-will” employment standard covering most non-union workers in the U.S. At-will employees can be fired for any reason and at any time—without just cause.

While such a major expansion of workers’ rights as Just Cause for All would be unlikely to pass in most state legislatures—Montana did it in 1987, but it’s still the only one—it could become law in states that allow ballot initiatives.

A well-orchestrated attack on the at-will employment standard would force the extreme, anti-worker, and big business interests who back right to work to respond. If nothing else, imagine how competing initiatives would force a debate. On one side, extending due process protections and increased job security to all workers: a real right-to-work bill. On the other side, taking away fair share contributions for collective bargaining.

This strategy isn’t untested. When the Coors beer dynasty backed a right-to-work ballot initiative in Colorado in 2008, labor collected signatures for a counter-initiative, “Allowable Reasons for Employee Discharge or Suspension,” which would have overturned at-will employment. (Labor also supported a proposal that would have provided affordable health insurance to all employees and a measure to allow workers injured on the job to sue for damages in state courts.)

Fearing that the just cause proposal might pass, centrist business people offered a deal. In exchange for labor withdrawing its proposal, they provided financial support and manpower that helped labor defeat right to work in Colorado. (For more on this story, read “The 2008 Defeat of Right to Work in Colorado: Is it the End of Section 14(b)?” Raymond L. Hogler, Labor Law Journal, Spring 2009.)

While it’s unfortunate that the labor initiative didn’t go before Colorado voters, the result was still encouraging—and instructive. By championing the interests of all workers, labor split business and blunted the right-to-work effort.

To win back “fair-share” participation in the three new right-to-work states and stop further attacks, we’ll need well-planned campaigns that include grassroots mobilization, direct action, paid and earned media, and focused electoral work.

Just Cause for All campaigns should be part of the strategy. Even if we lose, campaigns for due process and job security for all will help shift the debate on right to work, leave the labor movement stronger—and make labor and its allies once again the champions of the “99%.”

About the Authoer: Rand Wilson is policy and communications director at SEIU Local 888 in Boston.

– See more at: http://www.labornotes.org/blogs/2015/03/viewpoint-smart-strategy-defeat-right-work#sthash.pYXbeTz1.dpuf

Workplace bullying targets winning unemployment benefits appeals in New York State

Saturday, August 17th, 2013

davidyamadaThanks to a developing line of administrative appeal decisions, workers in New York State who resign their jobs due to bullying and employer abuse could still retain eligibility for unemployment benefits.

Under New York State labor law, workers who voluntarily resign without good cause are presumptively ineligible to receive unemployment benefits. Most other states follow a similar rule. Of course, this frequently leaves targets of workplace bullying in a bind when it comes to qualifying for unemployment benefits. All too often, quitting is the only way to escape the abuse.

That’s why I was so pleased to hear from James Williams, an attorney with Legal Services of Central New York, who sent news of a recent decision in a case he argued before the New York Unemployment Insurance Appeal Board.

Case Details

The claimant appealed a denial of unemployment benefits holding that he voluntarily resigned his job with a local government entity, without good cause. The Administrative Law Judge overruled the denial of benefits, rendering these findings and a decision:

The undisputed credible evidence establishes that the claimant left employment voluntarily . . . after being notified . . . that he was on probation, because he felt bullied, harassed and set up by his supervisor. I credit the claimant’s credible sworn testimony that his supervisor’s repeated criticism and scolding of him in a raised voice made him feel bullied and harassed, especially in the presence of other employees. I further credit the claimant’s credible sworn testimony that the supervisor’s actions including pointing and reprimanding him, consisted of the word “stupid”, and other language which embarrassed the claimant and that the claimant believed he was being ridiculed by the supervisor. An employee is not obligated to subject himself to such behavior. Given that the claimant had complained to the employer about the supervisor’s behavior just two months earlier, and that the supervisor’s mistreatment not only continued, but escalated, I conclude that the claimant had good cause within the meaning of the unemployment insurance Law to quit when he did. Additionally, while disagreeing with a reprimand or criticism about work performance may not always constitute good cause to quit, receiving reprimands in the presence of one’s co-workers may be. . . . Under the circumstances herein, the supervisor’s treatment of the claimant exceeded the bounds of propriety, with the result that the claimant had good cause to quit. His unemployment ended under nondisqualifying conditions.

Other Decisions

Attorney Williams relied upon previous decisions by the full Appeal Board holding that disrespectful and bullying-type behaviors that exceed the bounds of propriety (that appears to be the key phrase) may constitute good cause to voluntarily leave a job and thus not disqualify someone from receiving unemployment benefits. They may be accessed at the Unemployment Insurance Appeal Board website:

  • Appeal Board No. 571514 (July 3, 2013)
  • Appeal Board No. 559667 (February 28, 2012)
  • Appeal Board No. 558223 (January 25, 2012)
  • Appeal Board No. 549810 (September 10, 2010)

Jim added in an e-mail that potential New York claimants who may fit this scenario “are advised to take steps to try and save their jobs prior to quitting.  They will want to be able to show to the Department of Labor and to an ALJ that they took steps to try to change the situation – complaining to management, human resources, etc. – before quitting.”

Using These Decisions

The reasoning in these decisions is limited to unemployment benefits cases. Furthermore, the holdings of these cases are not binding upon unemployment benefits claims in other states. However, they can be brought to the attention of unemployment insurance agencies elsewhere as persuasive precedent.

In addition, this serves as an important lesson to those who may have been initially denied unemployment benefits after leaving a job due to bullying behaviors. It is not uncommon for initial denials to be reversed on appeal, and these cases provide genuine reason for optimism in situations involving abusive work environments.

This article originally appeared on Minding the Workplace on August 13, 2013.  Reposted with permission. 

About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston.  He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country.  In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.

 

Your Rights Job Survival The Issues Features Resources About This Blog