September 2018, Week 1


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 		 [Workers rights under the law has suffered systemic neglect since
the National Labor Relations Act was passed in 1935. Fixing it is a
start, but much more need be done.] [https://portside.org/] 




 Kalena Thomhave 
 August 31, 2018
American Prospect

	* [https://portside.org/node/18080/printable/print]

 _ Workers rights under the law has suffered systemic neglect since
the National Labor Relations Act was passed in 1935. Fixing it is a
start, but much more need be done. _ 

 Marches in support of raising the minimum wage to $15 an hour in
Miami., AP Photo/Lynne Sladky 


With Democrats looking primed to retake the House, there could be a
new—and rare—opportunity to rethink labor laws in the next session
of Congress. Numerous policy proposals are already making the rounds,
but as progressive Democrats shop around for new labor reforms, where
will they turn? 

Last week, the Economic Policy Institute (EPI) released a 15-point
policy agenda
[https://www.epi.org/publication/first-day-fairness-an-agenda-to-build-worker-power-and-ensure-job-quality/] to
reverse the decades-long erosion of workers’ rights in the U.S. 

Celine McNicholas, director of labor law and policy at EPI and one of
the coauthors of the agenda, says that instead of the “magic
bullet” reform that lawmakers might be searching for, there is no
quick-fix solution. Getting decent wages back into the pockets of
workers and giving workers more power at the bargaining table will
take a comprehensive reform package, she says. 

Workers, she explains, suffer from a “systemic neglect” of labor
law, specifically the National Labor Relations Act, which hasn’t
been updated to address the tremendous economic changes workers have
experienced since it was enacted in 1935. (Or more precisely, updated
in ways that help workers: Business interests have managed to weaken
the law through amendments like the Taft-Hartley Act and a serious of
anti-worker court rulings.) As a result, employers have become
experienced in throwing wrenches into the current system, like
labeling their workers as independent contractors to avoid the reach
of unions or launching propaganda campaigns when they hear a whisper
about unionization.

Enter the EPI agenda, called “First Day Fairness,” a nod to the
fact that workers have little to no bargaining power in their
workplaces from their first day on the job. Most of the reforms are
not necessarily new ideas, but taken together, they would help
rebalance a system that’s currently tilted against workers.

The agenda lays out a reform plan that would strengthen unions in the
U.S., ensure workers are fairly compensated for their work through a
living wage and access to overtime, guarantee basic job quality by
affirming paid sick leave and predictable scheduling, and prohibit
employers from requiring workers to “sign away their rights”
through non-compete agreements that limit their ability to seek other
jobs. More radically, the agenda also recommends ending at-will
employment—the ability of employers to discharge workers at their

The most important item on the agenda, says McNicholas, is
strengthening collective bargaining. Because one of the main culprits
of the erosion of workers’ rights is the erosion of union
membership, the agenda highlights greater union protections as a
priority. Although McNicholas says that all these reforms need to be
done together, she also says that if policymakers _did _want to
focus on one specific area, then that area should be unions. If
unionized employees have access to collective bargaining and the right
to strike, they can demand better conditions and will be more likely
to have access to the other recommended reforms like increased wages,
paid sick leave, and safer workplaces.

The agenda also notes that the reforms will particularly help people
of color and women, who disproportionately work in low-wage jobs with
limited protections, and who earn lower wages than their white male
counterparts. Policies that increase the influence of unions and set
fairer labor standards will disproportionately benefit marginalized

Taken one-by-one, the EPI proposals actually already have been
advanced in a range of separate bills introduced by Democratic members
of Congress. The identities of these bills’ authors come as no great
surprise: Senators Bernie Sanders of Vermont and Patty Murray of
Washington state, and Representatives Rosa DeLauro of Connecticut and
Bobby Scott of Virginia frequently crop up in the list of primary
sponsors. But what McNicholas says stood out to her as encouraging was
the sheer number of cosponsors the bills had—plenty of Democrats had
signed onto these proposals. It may be that more Democratic
legislators are prioritizing workers’ concerns than has been the
case in many decades. Indeed, one of the key bills that the EPI agenda
spotlights, the Workers’ Freedom to Negotiate Act
is part of the Democratic leadership’s “Better Deal
[https://abetterdeal.democraticleader.gov/]” framework. This act
aims to make unionization more accessible to workers by increasing the
penalties on employers who violate the law, creating a mandatory
mediation and arbitration process to ensure that a union and a company
actually reach a contract, banning state right-to-work laws, and
strengthening the right to strike by preventing employers from hiring
permanent replacements.

The last time that Democrats had an opportunity to strengthen labor
law was in 2009, when they introduced the Employee Free Choice Act
(EFCA). That act would have given employees the right to form a union
if a majority of workers signed union affiliation cards, thereby
circumventing employers’ efforts to scare workers into voting
against unionization. Attacks from the right and from business ensured
that it failed. 

Today, many involved in the labor movement, like Shaun Richman,
program director at the Harry Van Arsdale Jr. Center for Labor
Studies at SUNY Empire State College, says the legislation didn’t go
far enough, and that more radical solutions are required to close the
huge power gap between management and labor.

Richman supports EPI’s agenda and says that it is “really good and
necessary”—but that it’s largely focused on “plugging the
holes” in a system of “contract unionism.” Contract unionism
means that a union contract is with one company or one workplace.
“The big thing we have to do,” says Richman, “is get beyond

One way to do that is to enact a law requiring sectoral bargaining, as
it shifts the scope of the contract from a shop-by-shop framework to
the level of the sector as a whole. Under the current system,
management may fear that if it goes union, it will be at a competitive
disadvantage with its competitors—a fear that often fuels the
fanatical level of opposition that businesses often mount against
their workers’ attempts to unionize. If the terms of a contract are
applied sector-wide, however, the ostensible disadvantage of going
union would be eliminated, or at minimum, diminished.

Richman points to wage boards
[http://inthesetimes.com/working/entry/18516/fight-for-15-wage-board-minimum-wage] as
one way to do sectoral-level bargaining. They’re not a new idea in
the U.S. or, in various permutations, in other nations. Instead of
collective bargaining at the firm level, bargaining happens at
the _industry _level. That’s how New York was able to implement a
$15 minimum wage for fast food workers—through the New York Fast
Food Wage Board. Some wage boards can be found in the U.S. on the
state level or the city level, but they could be implemented at the
national level, as they are in many countries in Europe. Wage boards
are not a substitute for a union contract at a particular work
site—the union contract still strengthens workers’ power within
their company, and sectoral bargaining enables those workers to focus
on winning other rights and benefits without fear of their employer
retaliating by reducing their wages. 

One item included in the EPI agenda that Richman terms both critically
important, and radical for a policy agenda, is its call for ending
at-will employment nationally. Under the at-will employment system in
the U.S., an employer can fire a worker for basically any reason other
than the discriminatory ones specified in the Civil Rights Act.
(Firing a worker for trying to form a union is illegal under the NLRA,
but the penalties for doing so are practically nonexistent, unlike the
penalties for firing workers due to their race, gender, and religion,
for which the penalties under the Civil Rights Act can be
considerable.) Not only would requiring an employer to give an actual
reason to fire someone better protect workers without a union
(requiring a “just cause” for dismissal is standard in union
contracts), but it would also better protect union organizers from
illegal retaliatory firing. (Frequent _Prospect _contributors
Richard Kahlenberg and Moshe Marvit have written
[http://prospect.org/article/labor-crossroads-can-broadened-civil-rights-law-offer-workers-true-right-organize] that
adding union organizers to the protected category of workers under the
Civil Rights Act would be one way to address that concern.)

Besides EPI’s comprehensive agenda, a flurry of bills has been
introduced recently to bolster workers’ rights. Massachusetts
Senator Elizabeth Warren, for example, just launched her reform
which focuses on reeling in the power of corporations. One of her most
prominent proposals includes requiring worker representation on
corporate boards. 

Among labor advocates and throughout Democratic ranks, there’s a
growing belief that multiple approaches_ _are required to redress the
imbalances between employers and employees, between capital and labor.
If the Democrats can retake the federal government in 2020,
progressive lawmakers should be thinking big—and big ideas need to
be put in front of them.

_Kalena Thomhave is a writing fellow at the PROSPECT._

	* [https://portside.org/node/18080/printable/print]







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