A Labor Day Call for Rights for Working People

The general rule of law for employees is employment at will–this means an employee can be fired for any reason, no reason or a bad reason without recourse. Workers gained rights in the early Twentieth Century when the union movement developed and workers joined together to bargain with employers. But that movement was stalled by laws that put up barriers to workers joining together in a union. The civil rights movement for workers should seek a Bill or Rights for Workers, including the right to organize a union and a living wage for all full-time workers among other rights.

America’s working men and women have been abandoned by the corporate dominated two-party system. Evidence is everywhere. The percentage of union members in the private economy has dropped below ten percent, the lowest in over sixty years. At the heart of this decline are labor laws which throw insurmountable barriers before organizing efforts. A professional class of public relations consultants and lawyers has evolved to counsel employers on ways to take full advantage of the Taft-Hartley Act to fend off organizing efforts. The National Labor Relations Act gives employers plenty of ways to prevent workers from exercising their supposed right of freedom of association.

The Taft Hartley Act makes it extremely difficult for employees to organize unions and should be repealed. Among the key provisions of Taft-Hartley:

– Authorized states to enact so-called right-to-work laws. These laws undermine the ability to build effective unions by creating a free-rider problem–workers can enjoy the benefits of union membership in a workplace without actually joining the union or paying union dues. Right-to-work laws increase employer leverage to resist unions by enabling them to benefit from free riders. Vastly decreased union membership follows, dramatically diminishing the unions bargaining power.

-Outlaws the closed shop which required that persons join the union before being eligible for employment with the unionized employer. (Still permitted are provisions that require any member of a bargaining unit to pay a portion of dues to that union.)

-Defined “employee” for purposes of the act as excluding supervisors and independent contractors. This diminished the pool of workers eligible to be unionized. The exclusion of supervisors from union organizing activity meant they would be used as management’s “frontline” in anti-organizing efforts.

-Permitted employers to petition for a union certification election, thus undermining the ability of workers and unions to control the timing of an election during the sensitive organizing stage, forcing an election before the union is ready.

-Required that election hearings on matters of dispute be held before a union recognition election, thus delaying the election. Delay generally benefits management, giving the employer time to coerce workers.

-Established the “right” of management to campaign against a union organizing drive, thereby scuttling the principle of employer neutrality.

-Prohibited secondary boycotts–boycotts directed to encourage neutral employers to pressure the employer with which the union has a dispute. Secondary boycotts had been one of organized labor’s most potent tools for organizing, negotiating, and dispute settlement.

The president needs to appoint federal judges who are supportive of the rights of workers, not judges who summarily dismiss employee claims, who narrowly read the Americans with Disabilities Act or do not allow punitive damages. Efforts to repeal the Taft Hartley Act, to create explicit employer neutrality and even to make modest reforms such as card check voting have been abandoned by the two-party system with few exceptions among legilators. Systemic failures to enforce labor rights allow for retaliatory firings of organizers and even those who vote union in secret elections.

With the demise of union influence, almost every aspect of workers’ rights is given short shrift. Minimum wage has been allowed to languish far behind inflation as executive pay skyrockets. The gap between the wages of now two-job (or more) working families and wealth of the privileged widens even as worker productivity rises. The average worker takes home takes home $517 per week, while the average CEO of the largest companies takes home $155,769 per week. The gap between workers and large companies is now greater than 300 to 1. In 1982 the gap was 42 to 1. Over 45 million workers–one in three–do not make a living wag, i.e. under $10 per hour gross. This is insufficient for an individual to live on and certainly not enough for a family.

Nader-Camejo advocates immediately increasing the minimum wage to $8 per hour, from its current $5.25 per hour. Two years after that increase Nader-Camejo advocates a $10 per hour living wage.

The battle for a living family wage and battles to repair the workers compensation systems to secure the rights of injured workers to treatment and retraining are fought without the steadfast support of most unions or major political parties. Universal health care, available in nearly all democracies, languishes for lack of power by organized labor within the American political system. Finally, the Enron scandal showed the need for employees to be allowed to diversity stock holdings in 401(k) accounts and the need for employees to sue under ERISA for breach of fiduciary duty when employers deliberately deceive employees in matters that will affect anticipated benefits. Where employee rights are at the pleasure of management, management takes care of its own.

The marginalization of organized labor and its agenda for working people within our corporate dominated political process is in sharp contrast to Western Europe. There unionization is industry -wide and not within a single company. The political support enjoyed by labor results in statutory rights available to union member and non union member alike. A month’s paid vacation, longer sick, maternity and family leave and of course health care that is entirely portable are benefits taken for granted in other Western capitalist economic systems. Landmark legislation in 2000 prohibited companies within the European Union from discriminating against workers based on their age, disability, sexual orientation, religion in addition to racial and sex discrimination.

With every election, unions are pressed to donate and get out the vote to protect the political status quo. Yet the same candidates whom unions seek to reelect stand by passively (or actively support), trade agreements which allow vast outsourcing of skilled jobs to third world countries where labor laws are much less protective if they exist at all.

How then can working Americans transform the landscape? Or Islands of Exploitation contained in every Wal-Mart Store and every Shopping Mall the future for our children and grandchildren?

One idea is to view labor rights as civil rights. Suppose workers enjoyed the same rights to form or join a union as they have to for other forms of discrimination? If workers seeking to unionize could sue under the Civil Rights Act of 1991 (instead of depending on existing unions to press for remedies before toothless federal agencies) they could secure:

-Compensatory damages, not just back pay, but damages for serious humiliation or grave emotional distress.

-Punitive damages, to send a message to outlaw employers that behave contemptuously, whether it is Microsoft or a big city sweatshop.

-Injunctive relief, including temporary restraining orders and preliminary injunctions so that employers can be in court defending themselves, or at least in depositions, within days or weeks of an unlawful firing.

-Legal fees, not only to give employers an incentive to settle but to empower individuals to bring their own law suits, even start their own organizing drive, and to enlist the private bar as a new army of organizers.

For the first time every citizen would be empowered to go out and push the cause of dignity and fair pay at work.

A Worker’s Bill of Rights is needed because the rights of worker’s have been on the decline. It is time to reverse that trend and begin to give workers–the backbone of the US economy–the rights they deserve. Among the items that should be included in a Worker’s Bill of Rights are:

– Workers need to be given a living wage–not a minimum wage.

– Access to health care and unilateral reductions in medical benefits should not be allowed.

– A pension plan should be included for employees and pensions for current employees and retirees should not be allowed to be reduced unilaterally.

– Employers should not be able to avoid these benefits by hiring “temporary workers” or “independent contractors.”

– The privacy of employees need to be protected, e.g. the monitoring of employee email.

– When downsizing of a company is necessary, employees need to be given adequate notice and sufficient severance pay.

– The pernicious dominant employment law of “employment at will” that allows for an employee to be fired for any reason, no reason or a bad reason needs to be replaced with an employee’s bill of rights.

When it struck down Alabama’s debt peonage law in Bailey v. Alabama, 219 U.S. 219 (1911), the United States Supreme Court wrote that the purpose of the Thirteenth Amendment was not simply to eliminate slavery, but “to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit without the rights to organize, strike, boycott, and picket.” (at 241) Early labor law, notably, the Norris-LaGuardia Act, was grounded in this Constitutional imperative and the guarantees of speech and association flowing from the First Amendment. During the New Deal worker freedoms under the Thirteenth Amendment diminished when the U.S. Supreme Court made the Commerce Clause dominant. This interpretation even turned the pro-worker Wagner Act into a law that gave the government power to eliminate strikes. The Commerce Clause put the needs of business first –asking whether labor organizing encumbers the free flow of business– and led to the federal government having the power to intrude into union organizing, as well as in disputes between labor and business on the side of business to keep commerce moving. An entirely new initiative must be undertaken to ground freedoms of speech, association and an effective freedom of labor on firm constitutional grounds.

The restoration and expansion of the rights of workers are timeless principles about basic human rights, fairness and justice.

Sources for more information:

Workplace Fairness, www.nerinet.org, The National Employee Rights Institute publishes its journal, the Employee Rights Quarterly. Workplace Fairness draws on the expertise of employment rights attorneys. It presents clearly written articles on employee remedies under state and federal laws and analyzes thoroughly needed reforms.

-U.S. Labor Party, www.thelaborparty.org, advocates for employee rights and organizes for a comprehensive, progressive labor agenda.



Ralph Nader is a consumer advocate, lawyer and author of Only the Super-Rich Can Save Us!