AUDIO: On “America’s Democrats” Podcast Talking About “Tell The Bosses,” 2020 Elections
Usher in a new day for labor: The courts can’t be counted on to protect workers anymore; Congress needs to pass new laws
As the Supreme Court prepares to decide whether the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination, it seems, at least to me, unlikely that a bench dominated by five very conservative men will protect gay employees.
This should be a wake-up call: We cannot count on the courts to protect our rights in the workplace. We need a Congress that will actually pass laws, and high on the list of legislative priorities should be a “just cause” law that would protect every employee from unfair terminations.
Common as a legal standard of employment across much of the industrialized world, and here routinely negotiated into union contracts, “just cause” is the principle that no employee can be fired without a legitimate, serious, work-performance reason.
Such a legal standard would empower workers to speak out about pay disparities, to combat sexual harassment and to complain about unsafe working conditions. It would give workers the power to say no to requests that fall outside the bounds of their duties or propriety.
In short, it would finally correct what has become a deeply imbalanced employer-employee relationship.
Lawyers for the Trump administration insisted at Tuesday’s high court arguments that it’s the responsibility of Congress, not the courts, to update the law to protect LGBT workers. They may be wicked but they are not wrong. The failure of Congress to do much in the way of legislating employee protections in the last quarter-century has created a vacuum that the courts have filled with a political agenda that is hostile to government regulations and worker rights.
Take 2018’s Epic Systems decision, in which the high court ruled that employers can force employees to submit accusations of unfair or discriminatory treatment to private arbitration, foreclosing class action lawsuits. To accomplish this, they radically reinterpreted the 1925 Arbitration Act.
A Congress that actually passes laws could simply overturn EPIC Systems, and make whatever narrow new standard the court defines in the current LGBT discrimination case moot. Of course, that will require a new president and a Democratic majority in the Senate that removes the filibuster as a convenient excuse for inaction. Progressive activists who will work their tails off for a Democratic majority in 2020 should demand no less than a Congress that takes swift action to give us all better job protections.
It’s encouraging that almost all of the Democratic candidates for president have produced detailed platforms for worker power, union representation and employee protections. Sen. Elizabeth Warren, of course, has a plan to protect gay and transgender workers. She also has a plan to protect workers from discrimination on the basis of pregnancy. And another to protect disabled workers. And another to protect employees who wear dreadlocks.
The fact that she proposes to amend the law in at least nine places to protect a ridiculously long list of categories of workers who continue to face discrimination belie the need for a universal right like just cause.
No worker is going to be told that the reason they are being fired is because they are gay. An employer will always invent a performance-based justification. Even if gay workers were protected by the Civil Rights Act, that law — like all current protections against unfair terminations — puts the onus on the employee to prove the ulterior motive.
A just-cause law would flip that burden onto the employer, where it belongs.
Mayor de Blasio was the first of three presidential candidates in the crowded field to have campaigned on a just-cause law; of them, only Bernie Sanders now remains. Still, it is electrifying to see one of the frontrunners for the nomination supporting a bold reform to end the everyday tyranny of the non-union workplace and to bring us in line with the kind of rights that hundreds of millions of workers the world over take for granted.
This is the future of Democratic labor policy. At least, it ought to be.
[This op-ed originally appeared in the New York Daily News.]
The Powerful New Idea in Elizabeth Warren’s Labor Platform
On Thursday, Elizabeth Warren released her long-awaited labor platform, titled “Empowering American Workers and Raising Wages.” The plan provides unions with a long wish list of badly needed reforms and new powers. It also makes a solid case that, like Bernie Sanders, she would be the labor movement’s biggest booster in the White House in generations.
Several other candidates, including Julián Castro, Beto O’Rourke and Amy Klobuchar, have also recently put out lengthy labor plans, which provide examples of how (and how not) to stand out from the pack when the baseline position of most Democrats in repealing the Taft-Hartley Act.
The biggest innovation in Warren’s platform is a private right of action in the federal courts against employers who violate the National Labor Relations Act.
Currently, only employers are able to take their complaints directly to the federal courts, against a union picket line, boycott action or other alleged violation of the 1947 Taft-Hartley Act. Warren would enable a union or an affected employee to sue an employer who commits an unfair labor practice (say, cutting a union activists’ hours, making threats or spying on secret union meetings) and seek injunctive relief—and even compensatory damages. Such a change would even the playing field in a significant way.
Warren is also proposing some activist anti-trust strategies to empower workers who are deemed to be independent contractors to better organize—and to shut down corporate mergers that will harm employees’ pay and work rules.
In the platform, Warren also reiterates her proposal for employee representation in corporate governance. A Warren administration would aim to make billion-dollar corporations set aside 40% of their executive board seats for employee representatives. While not new to her platform, it is a surprisingly radical idea that hasn’t received enough attention.
Like Sanders, Warren calls for a new federal framework for sectoral bargaining. The goal is to give unions the tools to equalize wages and benefits across multiple firms in an industry. Since individual employer-based collective bargaining is a huge part of the self-image of members and leaders alike of what unions do, both candidates are intentionally vague about the specifics of their proposals, and they are equally clear that unions will have a strong role in shaping the final legislation.
Still, the labor proposals from Warren and Sanders each signal their preferred approach.
I read Sanders platform as an embrace of wage boards, a throwback to an early New Deal model in which tripartite industrial boards voted on wage and working standards, and imposed them on all employers across an industry. As I’ve written previously, this is a framework that could put a union in every workplace in America, but, to be clear, it is not collective bargaining as we know it.
Warren’s proposal seems to be adding an overlapping representational structure to the NLRB process. Workers at individual workplaces might still vote for union representation at their firm only and negotiate collective bargaining agreements as we currently do. Meanwhile, certified unions could utilize some new process to certify a sectoral bargaining unit that would force employers to negotiate together over a specified scope of bargaining. This change would enhance union power (and unions may prefer it), but—even with card check and beefed-up NLRB enforcement—it would remain difficult for unions to dramatically expand their reach into many new workplaces.
The biggest disappointment of Warren’s labor plan is her studious avoidance of a just cause right to your job, as Sanders has proposed. A just cause law would put the onus on an employer to justify a termination. Just cause would give workers the power to say no to requests that fall outside the bounds of their duties or propriety, and it would give unions new tools in organizing and new modes of representation.
Instead, she proposes to amend the law in at least nine sections to outlaw non-compete and forced arbitration clauses and some of the most egregious forms of gender and wage discrimination. The fact that her platform contains a ridiculously long list of categories of workers whose protections against workplace discrimination belie the notion that universal protections are not essential.
Moreover, if a Warren administration successfully passes anti-discrimination protections for LGBTQ and pregnant workers, the law would still put the onus on the worker who suffered the discrimination to prove that their termination was for discriminatory reasons and not one of the many other excuses an employer will offer in defense.
In essence, this is the difference between the two most pro-labor candidates in the Democratic field. Elizabeth Warren approaches the issue of rights at work as a problem solver, and wants to enhance the institutional role of worker representation to restore a degree of macroeconomic balance. Bernie Sanders aims to radically alter the balance of power in the workplace.
Both platforms are excellent, and largely overlap on the remainder of reforms to the NLRA and other federal agencies that are supposed to protect workers from corporate exploitation, and both candidates can clearly be relied upon to prioritize workers’ rights issues once in office.
As for Castro, O’Rourke and Klobuchar, they also agree on an emerging consensus around fighting employee misclassification and overtime protection, raising the minimum wage and passing the Protecting the Right to Organize (PRO) Act, which would essentially overturn the anti-union Taft-Hartley Act, add card check under some circumstances and impose meaningful financial penalties for employers who violate their employees’ rights
Castro makes a major issue out of granting union rights for farm and domesticworkers—racist exclusions from the NLRA that cast a pall over the New Deal. Granted, almost every other candidate also supports this, but Castro stands out in terms of emphasis.
Klobuchar, on the other hand, is demonstrably going through the motions on workers’ rights. She endorses a long list of other people’s bills with no emphasis and nothing original. This shouldn’t come as a surprise from a politician who apparently thinks it’s funny to treat her own employees poorly. For readers who are worried that the candidates are just paying lip service to unions during the primaries but won’t follow through, Amy Klobuchar is what a Democrat who really doesn’t care about workers looks like. Compare and contrast with the others.
The biggest surprise is O’Rourke, who has one of the best labor platforms in the field. Like Pete Buttigieg, O’Rourke has clearly been taking advice from some of the smartest thinkers on how to restore union power, but unlike that other centrist from central casting Buttigieg, O’Rourke embraced some of the boldest solutions. Most interestingly, on the choice between wage boards and certified sectoral bargaining, O’Rourke’s team asks, “Why choose?” Under his formula, the wage boards would address big-ticket items across entire industries and take them out of competition, while the sectoral bargaining would empower unions to negotiate over the detailed minutia that workers also want to address in a contract. O’Rourke’s plan would give unions multiple strategies to end the corporate race to the bottom over pay and working conditions.
The “Yes and…” Labor Platform
Warren’s proposal for a private right of action in ULP cases is the biggest new addition, and should remain on unions’ reform agenda no matter who wins the nomination. But it is not without controversy. The federal courts have historically been where the most damage to workers’ rights have been inflicted, and many union attorneys will be apprehensive about losing control of strategy over marginal cases that could produce bad case law. I would argue that we’ve been fighting this anyway (and not exactly producing a stellar track record of wins), so why not cut to the chase and fight for our rights in the courts? Why let a Republican NLRB add layers of obstruction?
Beto O’Rourke’s “yes and” approach to sectoral and industry-wide worker representation should also inspire us to think about the opportunities of a new president and Congress differently. Labor activists have tended to approach previous opportunities for reform as a narrow window to win one thing, and the arguments over which ‘one thing’ will save us have been paralyzing.
But the crisis of economic inequality and its corrosive effects on our democracy require a host of reforms, and even centrist Democrats get that. We need overlapping systems of worker power, union representation and employee protections. The labor movement has now been presented with a rich collection of reform proposals. We should say yes to all of them.
[This article originally appeared at In These Times.]