Yes, Unemployment Insurance and Welfare Encourage People to Quit Lousy Jobs. That’s the Point.
Do we have a right not to work? The answer is we don’t if Democratic leaders stubbornly try to keep the “era of big government” confined to the 20th century.
Think of a barista right now in Georgia. She’s home collecting unemployment and watching her two kids while the schools and the cafe where she worked are closed. Her boss says they’re reopening next week even as the coronavirus continues its deadly spread, but schools won’t. Governor Kemp, along with other GOP governors, is using the horrifying tactic of threatening to kick workers off unemployment insurance if they don’t return to their jobs. What should she do?
This is the stark choice many workers are left with in post-”big government” America. Return to work and face a deadly virus when intensive-care beds are already nearly full in Georgia and her kids are alone, or stay home and risk losing all income. That so much of the current tension around a healthcare crisis focuses on a patchwork of complex, underfunded state unemployment programs speaks to the dearth of programs and policy tools available to sustain people when work is scarce or conditions are miserable.
Most people’s experiences with the stinginess and arcane rules of our nation’s patchwork of unemployment systems have conditioned us to assume that we’re not eligible and that we should be discouraged from applying, even under desperate circumstances. Blame it on steady erosion of our more than 80-year-old New Deal-era safety net and the decades of attacks on the idea of welfare, capped by Bill Clinton’s era-ending declaration that accompanied the catastrophic 1996 reform bill he signed into law with support of many Congressional Democrats, including our presumptive Democratic presidential nominee.
Our current crisis has exposed two flawed premises around how we think about money: that not all workers deserve enough of it to live on and that the government is incapable of providing it. Like our flagship retirement programs for those over 65 years old, Social Security and Medicare, income replacement can and should be for everyone. Universal, or near-universal, programs like unemployment insurance and Social Security are popular for a reason. They provide much-needed sustenance and promote the idea that everyone deserves to have their basic needs met. Newer social programs have been replaced by stingier, more complicated models that means-test who “deserves” life-saving support. This breeds both unnecessary administrative burdens and resentment between voters who should be united in trying to improve conditions. According to One Fair Wage, 44% of all applicants for pandemic unemployment still haven’t received their benefits.
Worst of all, means-testing makes government programs easy targets and far less effective. Remember Aid to Families with Dependent Children (AFDC) that welfare reform killed? Sixty-eight out of 100 families received it in 1996, when it was replaced by far less generous Temporary Assistance for Needy Families (TANF). In 2018, only 22 out of 100 received aid. The same has already happened to unemployment. Only 27% of unemployed workers received benefits in 2016. The average unemployment benefit (excluding the added $600 per week stimulus), which varies wildly by state, replaces just 38% of the average paycheck. And now the system is under unprecedented strain. Already underfunded, the flood of claims has jammed up government phone lines and websites. In New York alone, hundreds of thousands of workers are still waiting for their checks.
As a way to shore up bank accounts and put food on the table, unemployment was possibly our best option under the rushed circumstances of the CARES Act. But it’s a deeply-flawed compromise that, like the Affordable Care Act before it, utilizes a means-tested patchwork that deals Republican governors in on the implementation of a policy that many of them oppose. And like private health insurance, unemployment ties a critical safety net to the whims of a brutal job market that had hardly even recovered from the 2008 crash.
Many of the unemployed workers that we, a college administrator and labor lawyer, have spoken to have been reluctant to file. One, a building trades apprentice who was still taking her 40-hour OSHA safety class and hadn’t gotten her first work assignment, assumed she would be rejected for unemployment since she wasn’t laid off from a paying job. A stagehand who is not working while live entertainment is out of the question fears that filing would give the employer where he had recently helped form a union an excuse to fire him for “job abandonment.” A lawyer who lost his well-paid job hesitated to fill out a claim form because he felt the system was for “struggling workers,” not someone like him. He worried his claim would dry up resources for people who need it the most. Why should relief for them depend on their employers or governors?
One of the few bright spots of the CARES Act is that it will boost unemployment checks by $600 until July, pushing that wage replacement rate up to 100%. And it covers independent contractors. However, many workers will still be left out or shortchanged, including those whose incomes are too low to qualify, undocumented workers, and tipped workers whose unemployment benefits will depend on whether their employers reported their tips as income.
It is clear that the federal government will need to pass multiple rounds of economic rescue packages. Democratic leaders have to drop their pathological insistence upon means-testing benefits. On one side are Trump’s big promises of across-the-board benefits (bearing his signature), on the other is Republican lawmakers’ actual hardline bargaining to shovel money to corporations while keeping benefits as stingy as possible to force people to drag their carcasses to lousy, dangerous jobs. Caught in between, this is no time to limit expectations and pose as the “more responsible” party. Key to Democratic electoral fortunes is making voters believe that the government can be a force for good in their lives, and that means making demands and fighting like Hell to win them.
Congress’ bi-partisan zeal to swish-swish over one and a half trillion dollars for the initial recovery package puts the lie to every bit of “h0w D0 y0u P@y F0r iT” scare-mongering about universal programs like Medicare for All and the Green New Deal that were trotted out during the presidential debates. The next year will likely prove that both the recovery package and Sanders’ moderate platform are wholly inadequate for solving our looming economic disaster.
Republican Senators like Lindsey Graham and Ben Sasse who publicly fretted that the enhanced unemployment benefit might be—as Bernie Sanders caustically characterized it—“a few bucks more” than their paltry wage said the quiet part out loud. If a government-sponsored income replacement program gives workers the bargaining power to refuse to work without better compensation and workplace protections, would bosses have to take their lives more seriously?
No one should have to choose between unsafe, underpaid work or poverty and starvation. The point of unemployment insurance (and welfare) is to give workers enough bargaining power to reject unacceptable working conditions and to force bosses to make a job worth doing. We must focus on [expanding programs until there’s universal coverage. That means boosting benefits levels for essential programs like Social Security Disability and raising the federal poverty level ($26,200 for a family of four) to broaden eligibility to programs like Supplemental Nutrition Assistance Programs and Medicaid. We should also restore welfare as we knew it before Bill Clinton dismantled the program. We must also explore capping the workweek and fully subsidizing education and training for those who want it. That’s something worth leaving the house for.
[This post was co-authored with Leo Gertner and originally appeared at In These Times.]
Kick the Boss Out of the Doctor’s Office
Is the ability to negotiate healthcare benefits with employers a source of strength for unions, or an insidious trap? The Covid-19 health crisis and ensuing economic meltdown probably answers that question, but it’s still worth dissecting for those naive optimists who think there is some semblance of the old normal that we can return to when the pandemic is finally behind us.
Medicare for All was a central issue in the Democratic presidential primary. Among the front-runners, Bernie Sanders and Elizabeth Warren endorsed versions of a single-payer plan, while Joe Biden argued against it. In doing so, Biden employed unions’ hard-fought campaigns to win and maintain health benefits to argue that taking the issue out of bargaining entirely, by providing healthcare to everyone, would be disrespectful to union members’ past sacrifices. The issue blew up in the Nevada caucuses when the powerful—and progressive—hotel and casino workers union, Culinary Local 226, warned members to be wary of candidates supporting Medicare for All, claiming it could spell the end of their admirable system of employer-sponsored healthcare clinics.
The messy truth is this: unions that have robust labor-management benefit funds enjoy a degree of power and privilege in our broken system, and can even use their health care plans to aid in organizing. But most unions negotiate with employers individually, and the rising cost of insurance premiums drags down wages and the ability to organize new shops. My experience as a union organizer and negotiator has convinced me that unions cannot grow until we kick the boss out of the doctor’s office.
I cut my teeth at the NY Hotel Trades Council (NYHTC), whose system of union-run healthcare clinics was the model and inspiration for Culinary Local 226. I appreciate the pride that union leaders take in providing health benefits for their members, and their reticence about making big changes. It was easily the best health care (as distinguished from mere insurance) that I’ve enjoyed in my life. It’s not just that co-pays were low and prescriptions were dirt cheap. The group practice aspect of its network of clinics—doctors, nurses and technicians actually consulting with each other about a patient’s symptoms and medical history and developing a holistic approach to diagnosis and treatment—is amazing. It’s what we want when we visit a doctor. We don’t get it under our current mess of private insurance. But the NYHTC has somehow managed to win and maintain just such a miniature form of socialized medicine for its community.
Unions only got into the business of healthcare when the government froze wages during World War II to fight inflation, but exempted “fringe” benefits. Many unions emerged from the war years with employer-sponsored health insurance. The social democratic CIO unions held out in hopes of a post-war expansion of healthcare as a universal right. After Republicans took control of Congress in 1946, CIO leaders vowed not to wait “for perhaps another ten years until the Social Security laws are amended adequately” and to use their collective bargaining power to address their members’ health and retirement security. Think about that. Our employer-sponsored healthcare system was a five-year deal to make progress on a ten-year problem, not to be our forever compromise.
In a fascinating contrast, the NYHTC was an AFL union with Communist leadership during the war. It bargained for employer-funded health insurance and quickly chafed against the costs and lack of control that Blue Cross afforded them. They bargained for employers to fund a jointly-managed network of health clinics. The NYHTC was able to organize its miniature system of socialized medicine because they were smart enough to take advantage of a political moment in time when employers wanted labor peace and were willing to pay for it. They’ve managed to hold on to it because they have maintained a very high level of union density and because the economics of the system works for the employers.
In fact, they managed to negotiate a deal with the city’s Hotel Association that says laid off members will continue to enjoy their health benefits while they are laid off due to hotels being shuttered as a result of Covid-19. But most other unions have had little to no ability to maintain health benefits for their laid-off members. Millions of workers are losing their access to healthcare along with their jobs in the middle of a global health pandemic.
Unions with benefit funds play an outsized role in the thinking about labor law reform because of their relative size and political clout. There are some who propose technocratic solutions for union growth, by having unions take on the administrative burdens of benefit administration and offering economies of scale to entice employers into a bargaining relationship. But there are two primary problems with this approach.
First of all, it requires organizing from a position of strength, and there are not many places where labor is institutionally strong. In recent years, the NYHTC has begun to organize workers outside of the five boroughs of New York City. The fact that unionized hotels that pay into the benefit fund wind up spending less money on better healthcare has been helpful. That’s great for hotel workers in New Jersey and upstate New York. But what the hell do we do about grocery store workers in Arizona, or adjunct professors in Texas?
The second problem is that operating a benefit fund requires willing employers, and employers are mostly not willing. They’re not eager to have unions in the workplace and they’re not willing to engage in collective problem solving with their competitors. Employers spent the last 40 years breaking out of multi-employer bargaining everywhere that they could. Most employers put the high cost of health insurance on the bargaining table on day one. Before they can even try to make any gains, unions are already fighting concessions around health insurance.
The Culinary union’s skepticism of Democratic promises was understandable. Unions knocked on their members’ doors in 2008 warning that John McCain wanted to tax their health insurance only to watch Obama and Biden do the same. The irony is that Bernie Sanders’ plan—which now looks eminently moderate and affordable in the context of multi-trillion-dollar economic stimulus packages—would have explicitly protected and encouraged labor-management plans like Culinary’s. His proposed version of Medicare for All would simply alter who pays for the health clinics, not who hires the medical staff—or who the patients are. And Congress can still pass it.
In fact, moving to a single-payer system could enable more unions to win excellent healthcare through group practice clinics for their members—an essential next step after winning universal access to care.
Portions of this article were adapted from Tell The Bosses We’re Coming: A New Action Plan for Workers in the Twenty-First Century (Monthly Review Press).
[This article originally appeared at In These Times.]
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.]