Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NAACP’

The Trump Administration’s Backdoor Plan to Erode the Rights of Workers to Act Collectively

Monday, October 2nd, 2017

On October 2, the U.S. Supreme Court will hear a case that implicates the very concept of collective action. NLRB v. Murphy Oil asks whether it is a violation of workers’ rights to force them to enter into arbitration agreements that prohibit collective or class litigation. Such agreements, often entered into as conditions of employment, require workers who want to sue their employers to do so individually in a private arbitration setting, rather than as a class of aggrieved workers who can pool their resources and knowledge. According to a recent study by the Economic Policy Institute, more than 60 million U.S. workers have now lost access to the courts because of such forced arbitration agreements.

Now, the Trump administration is entering the fray, submitting a brief to the Supreme Court in the Murphy Oil case aimed at advancing an anti-worker legal theory poised to erode protections for workers outside of the union context.

Such efforts could have far-reaching implications. In a 1997 paper for Arizona Law review, professor of law emeritus Jack Greenberg argued, “Civil rights and class actions have an historic partnership,” with class actions routinely used “to challenge discrimination in employment, education, the use of public facilities and housing, to assert prisoners’ rights, and to promote welfare reform, to name just a few areas that conventionally are put in the civil rights category.”

More recently, the NAACP went further, arguing in an amicus brief submitted in August 2016 to the Supreme Court that “American democracy depends upon our unwavering commitment to equal opportunity. Federal labor law honors that commitment by guaranteeing employees the right to challenge workplace discrimination through concerted activity, including picketing, striking and group adjudication of workplace rights.”

Yet, in recent years, the rights of most Americans to engage in concerted legal has greatly diminished. In a 2015 investigative series on this trend, The New York Times reported that, starting in 1999, a “Wall Street-led coalition of credit card companies and retailers”—with soon-to-be Chief Justice of the Supreme Court John Roberts Jr. involved—engineered a plan to get rid of class action lawsuits, because such lawsuits allow individuals to pool their power against companies.

Years later, in a pair of cases decided in 2011 and 2013, with John Roberts Jr. as Chief Justice, the Supreme Court narrowly held that companies could include contract provisions that require plaintiffs to go through arbitration instead of court, while waiving their rights to class actions.

A federal judge interviewed in 2015 by the Times explained that the result is that now, “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

The Times study of thousands of arbitrations—most of which are not publicly available—found that more and more consumer and labor and employment cases are being funneled into arbitration. Between 2010 and 2014, there was a 215 percent rise in arbitrations in labor cases over the previous four years. This represents a privatization of the justice system.

Furthermore, in many instances, the funneling of cases to individual arbitrations rather than class actions pressures workers into foregoing the process altogether. Looking at 2010 to 2014, the Times found that Verizon and Time Warner Cable, which have 140 million subscribers combined, faced only 72 arbitrations. After all, who would go up against an outmatched opponent alone?

It is understandable that workers would bow out, given that such arbitration settings are favorable to the employer. Unlike judges who are assigned cases randomly, arbitrators are chosen by the parties, meaning they are chosen regularly to arbitrate before the same corporations. If arbitrators against the corporations too often, there is a strong likelihood that the arbitrators will not be chosen again and therefore lose business in the future. This creates a financial incentive for arbitrators to side with corporations. The Times series notes that dozens of arbitrators “described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

Various attempts have been made to protect individuals from these arbitration provisions, including state laws holding these provisions to be unconscionable, as well as legal arguments claiming that such provisions violate federal anti-trust rules. But these arguments have failed at the Supreme Court. What has remained is the National Labor Relation Board’s (NLRB) position that Section 7 of the National Labor Relations Act (NLRA) protects workers’ substantive rights to join together in class actions. Section 7 provides that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB has taken the position that employment class actions constitute “other concerted activities,” which are protected under labor law. And workers cannot sign away these rights, in the same way that they cannot sign away the right to form or join a union. The Seventh and Ninth Circuit Courts of Appeals agreed with the Board that the employer violated workers’ rights by making them sign arbitration agreements with class action waivers, but the Fifth Circuit held otherwise.

This split in the circuits made the issue ripe for Supreme Court review, and the matter was indeed appealed to the Supreme Court in September 2016, and accepted for review by the Supreme Court in January 2017. At the time, President Obama’s Solicitor General filed a brief with the Supreme Court supporting the NLRB’s position. But Trump’s Solicitor General later changed this position in order to side with employers.

In this case, the Trump administration expresses a view of labor law in the Solicitor’s brief that completely reorients workers’ rights. The brief acknowledges that Section 7 of the NLRA contains what it terms “core” rights, which relate to unionizing and collective bargaining, but pushes aside all other concerted activities as only contained in “residual language” and therefore not deserving of the same level of protections. Such a reading of labor law effectively states that the law’s protections only apply to workers’ activities as they relate to unions.

However, the NLRB clearly states that “the law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.” These rights are far broader than the Trump administration acknowledges in its brief before the Supreme Court, and any limitation of them would greatly diminish the few rights workers have in the workplace.

This week, management-side Republicans gained a majority on the NLRB, and soon a management-side Republican will become the agency’s General Counsel. This new conservative Board is likely to shift labor law away from worker protections, as was the case during the George W. Bush years. However, Trump’s Solicitor’s argument goes much further. It invites the Supreme Court to formally bifurcate and limit workers’ rights to act collectively.

This piece was originally published at In These Times on September 28, 2017. 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.

Civil Rights and Labor: Two Movements, One Goal

Tuesday, May 30th, 2017

“A community is democratic only when the humblest and weakest person can enjoy the highest civil, economic and social rights that the biggest and most powerful possess.”

— A. Philip Randolph
One of our most celebrated labor leaders, A. Philip Randolph, an organizer of the 1963 March on Washington, knew the connection between the labor movement and the civil rights movement was key to a truly inclusive democracy. He stood for access at the ballot box as well as to economic security—ideally through a good job with decent benefits and a union. Today, we find ourselves back in a place where our civil, economic, political and social rights are under constant attack. The violence we see against black youth—the heart-wrenching killing of Trayvon Martin, the homicide of Jordan Davis–the passage of “right to work” laws in states like Michigan, Missouri and Iowa that have deeply racist and divisive roots, and the constant attack on immigrant communities by the current administration affirm we still have work to do.

As trade unionists, labor leaders, parents and civil rights activists, we have dedicated our time, talent and resources to advancing the agenda for people who are simply working for a better life. We believe there has never been a more critical point in our nation’s history when it is so crucial for us to reconnect deeply the movement for working people with the movement for civil and human rights. We cannot forget that the March on Washington was about freedom, economic equity and good jobs. The intersection of human rights, civil rights and workers’ rights has always been a part of our struggles for independent power both here and abroad. We must continue to uplift those movements in an intersectional way to ensure we are able to win justice at the workplace and the ballot box to make a difference for those we serve.

This summer, one of the oldest and largest civil and human rights organizations, the NAACP, will come to the city of Baltimore for its annual convention. The NAACP has stood as a coalition partner to the labor movement since 1909. There are many organizations we as a movement value and partner with through shared program and the NAACP remains one of those core allies, despite the shifts that happen in the world around us. We have great leadership within both the labor movement and the NAACP. We have seen how powerful it is when leaders like AFT’s Lorretta Johnson stand shoulder to shoulder with the Rev. William Barber, leader of the NAACP North Carolina State Conference. We know our journey together must continue as we fight to assure that “the humblest and weakest person can enjoy the highest civil, economic and social rights that the biggest and most powerful possess.”

We must expand our vision by creating solidarity without borders so that working people will be treated with the respect we are due. Thus our history and our very purpose demand that we be in the forefront of the struggle to assure first-class citizenship to all people, of all colors, and all creeds without regard to sex, sexual orientation or gender identity. Our struggles are one; our hopes are one; our dreams are one. The past is not dead, it’s not even past.

This blog was originally published at AFL-CIO on May 25, 2017. Reprinted with permission.

About the Authors: James Settles Jr., also known as Jimmy, serves as a vice president and member of the Executive Board at the UAW. He is a national board member and Labor Committee vice-chair of the NAACP. Robin Williams serves as the national vice president of the United Food and Commercial Workers (UFCW). She is a national board member and Labor Committee vice-chair of the NAACP. Richard Womack Sr. is the emeritus assistant to the AFL-CIO president and former director of the AFL-CIO Civil, Human and Women’s Rights Department. He is a national board member and Labor Committee chair of the NAACP.

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