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New Perspectives on Workers’ Rights in the 21st Century (FULL TEXT)
Thank you, Ruth. Let me start by expressing my appreciation for the invitation and commending you, along with the UCLA Institute of Industrial Relations and the Labor and Employment Section of the L.A. County Bar Association, for sponsoring this Benjamin Aaron lecture series. With the speakers that have preceded me over the past many years, these lectures honor a wonderful legacy. Let me also acknowledge Ben Aaron, himself, a leading expert on workplace law for many decades. The program says over 50 years, but I notice that he has been affiliated with the UCLA Institute of Industrial Relations since 1946, so that must make him an expert for at least 60 years. In any event, he is one of those household names for everyone in our field, and it is an honor to be this year’s speaker in this series. When, several months ago, Ruth asked for the title of my talk, I confided that advance planning is not a particular strength of mine. So we settled on something that seemed general enough at the time to cover pretty much all contingencies. Fortuitously, you will all be relieved to hear, a new perspective on workers’ rights in the 21st century did in fact present itself in the interim, and that’s what I propose to share tonight. And although the truth is that this new perspective has been in formation for some time, a specific event occurred less than two months ago, on August 9, of particular relevance. Specifically, at its mid-summer meeting in Chicago, the AFL-CIO unanimously passed a resolution authorizing its state federations and local labor councils to offer affiliation to worker centers in their communities. At the same time, the AFL-CIO entered into a National Partnership Agreement with the National Day Laborers Organizing Network (NDLON), the largest national association of worker centers. The announcement of this new program, and the NDLON Partnership, received an extraordinary amount of press attention – including two NYT editorials, and front page stories in many of the countries’ major newspapers. Worker centers, for those of you not familiar with them, are community-based institutions that advocate for the rights of workers who typically do not have union representation. Many provide legal assistance regarding employment-related issues. Some offer workers’ rights and other job-related training classes and workshops. Others conduct research and report on sub-standard conditions in specific industries. Yet others focus on enforcing labor standards under the Fair Labor Standards Act, the Occupational Health and Safety Act, and other employment laws and regulations. In a number of instances, worker centers have tried organizing or they have referred workers seeking union representation to established unions. Other worker centers serve African-American communities or a more racially and ethnically mixed population. Worker centers in the South are working with Latino and African American communities, for example, to bridge cultural differences that are causing tensions in these communities and dividing workers in the workplace. Worker centers are conducting culturally appropriate workers’ rights trainings that highlight the need for worker solidarity. In some cases, the centers provide a structure by which workers join together to set their own terms and conditions of employment. In a widely publicized example in Agoura Hills, California, a group of NDLON day laborers set their own minimum wage at $15/hour and have since been acting collectively to enforce the rate. And here as in many other day laborer street corners and worker centers, the organization runs an informal version of a hiring hall. In carrying out these kinds of activities, worker centers have been appearing more and more like a parallel labor movement, albeit one that our labor movement – organized labor – had pretty much been ignoring for quite some time, seeing it as a fairly marginal and probably passing phenomenon, if aware of it at all. Far from disappearing, however, worker centers have grown significantly in number over the past decade. Ten years ago, there were fewer than a dozen such centers in the United States; today, there are over 140 in 31 states, in rural areas as well as in large urban centers. Those served by the worker centers work primarily in building and construction as well as in gardening and landscaping, hotel and restaurant, and other service sectors industries; additionally, however, some centers assist workers in meatpacking, poultry processing, and high tech, among others. Meanwhile, as the worker center movement has been organizing itself and growing, not only in the Los Angeles area but throughout the country, there has begun to be more overlap between our two worlds --- a greater recognition that many of the issues confronting the one were the same issues challenging the other: wage and hour standards, wage and hour enforcement, health and safety protection, government agency responsiveness, misclassification of employees as independent contractors, job training and worker rights education, immigrant rights, and more. And some of our more forward looking state federations and central labor councils have actually reached out and worked collaboratively with community worker centers on some of these common problems. That said, there are some fairly major differences between our two worlds. They tend to be neighborhood or community oriented, rather than industry or employer directed. They typically follow individual problem-based approaches, rather than advocate through longer-term, contract based relationships. They have very informal membership structures, if any, often without dues revenue or any And perhaps most significantly, the worker centers deal largely with individual employment rights, rather than collective rights, much less collective bargaining. In my opinion, however, these differences and particularly the latter simply highlights the urgency of integrating our two labor movements with their two distinct regulatory regimes of workplace rights: government and private enforcement of legislatively mandated minimum standards, articulated as individual rights, on the one hand, and collective action, most importantly collective bargaining on the other. And I want to suggest that unless we find a better way to combine these two regimes, we will not only fail to deliver on the potential value that both the worker center and unionized labor movements have to offer, but more fundamentally, we will be playing into the hands of the companies and their political agents whose goal is really to strip workers of any and all meaningful rights in the workplace – both individual and collective. So with this background, I would like to discuss the tensions but also the mutual dependency that I believe exist between the individual rights and collective rights regimes, and then come back to the worker center partnership, itself, to examine its potential and where it might lead in terms of a broader, more integrated worker rights movement, over the remaining 94 years of this 21st century. Finally, I would like to end by opening this up to a discussion, and urging you to share whatever ideas you may have about this. Let me start with a story that I think well illustrates the intersection of our two workplace regulatory regimes. In the early 90’s there was a Memo of Understanding between the Department of Labor and the Department of Justice, where the INS was then housed. It provided that whenever the DOL Wage & Hour investigators were called in to inspect a workplace for possible minimum wage or overtime violations, they would inspect for immigration violations as well, and report them to the INS. From an efficiency perspective this arrangement may have made some sense. But its practical effect, as several unions quickly recognized, had a very chilling impact on workers’ willingness to call on the DOL investigators even in the face of widespread, flagrant wage & hour violations, whenever they had reason to believe that one or more workers with immigration problems was in their midst. In other words, concerted activity by unions and the workers they represented, to enforce individual FLSA rights, was being impeded by this MOU. Eventually, we were able to get the Clinton Administration to address this problem, and the MOU was modified. The co-existence and tension between collective and individual rights in the workplace, are to some degree emblematic of their relationship in society at large. Over our country’s history, the pendulum has swung back and forth with the balancing of individual religious rights or property rights, for example, on the one hand, and the rights of what FDR referred to as the national community on the other – the right of society as a whole to legislate for the common good, including worker rights. The pendulum effect notwithstanding, our present experience seems particularly polarized – with a very conscious effort by the current Administration and its allies to weaken if not eliminate community rights, collective rights, organizational rights: doing away with social security; promoting individual accounts for unaffordable health care; 401(k)’s to replace defined benefit pension plans; and other policies designed to subjugate American workers, and Americans in general, to corporate interests – something that the founding fathers/mothers didn’t ever embrace as far as I can tell, even as they espoused free enterprise. The two workplace regulatory regimes are not wholly separate and they are certainly not incompatible. Since the 19th century, the labor movement has been the primary advocate for statutory protection of all workers despite concern among some union leaders that raising the floor for everyone lessens the attraction of unionization. Few of our most important pieces of workplace legislation would exist without unions and collective action. The eight hour day was a major objective of the early labor movement and the passage of the Fair Labor Standards Act in 1938, its subsequent extension to cover public employees, domestic employees, and other initially excluded groups as well as subsequent hikes in the minimum wage all are attributable to union support. (By the way, how many raises do you think Congress has voted for itself since the last increase in the minimum wage -- which since 1997 has been stuck at $5.15? Eight!) If unions had not negotiated pension and health benefits in auto, steel and other sectors during the 1940's, 50's, and 60's, the federal protections offered under ERISA would not have been enacted. Even in the area of civil rights law, while unions have not been immune from the virus of racism that has infected this country, for the past several decades unions have been at the forefront of efforts to end employment discrimination. Same with OSHA, the ADEA, the ADA, and the FMLA. In other words employment laws do not get passed simply because employees need protection or because they are just. They get passed because labor unions and their allies draft the bills, lobby the legislature, educate the public, and demonstrate mass support for the legislation. The heart and soul of the labor movement as well as a significant amount of its financial resources have been firmly behind the creation, extension and strengthening of the federal employment laws that are now taken for granted. So while labor and employment laws may occupy separate sections of the statute books, they can be kept apart only in law school class rooms, because without a strong labor law protecting a vigorous labor movement, the advance of legal protections for individual employees will surely be halted if not reversed. The reasons for under-enforcement in these industries are obvious once one considers the two potential enforcement agents. First, there is government, but there are too many workplaces and too few inspectors. For example, based on the current number of OSHA health and safety inspectors, covered firms can anticipate being inspected once every 108 years. Between 1975 and 2004, the The other possible enforcement mechanism is the workers themselves. But low-wage workers, and even more highly paid ones, often do not know their rights and, even when they do, their fear of retaliation often lead them to accept substandard and even illegal pay and working conditions – even illegally substandard. More than a lack of sophistication is operating here. In effect, many workers consent to waive their rights as a condition of employment because the one legal doctrine that their employers have explained to them is the employment at will doctrine. So while the law is that FLSA rights cannot be abridged by contract or otherwise waived, in practice, waiver is endemic. Implicitly, workers waive their rights in order to keep their jobs. The problem is not simply underenforcement, but also that the patchwork quilt of statutes that constitute federal employment law, even when knitted together with state laws, leave many holes uncovered. These laws have been characterized by the Supreme Court as “minimum substantive labor standards,” but really that is a charitable characterization. As important as these laws are, they represent a set of largely unconnected political and economic compromises that together are hardly a coherent system of regulating the workplace. Our other form of legal regulation of the workplace, collective bargaining, owes its existence to the National Labor Relations Act -- New Deal legislation that was intended to create a system of workplace self-governance and democracy. Collective bargaining was really designed to address each of the defects in the system of legislatively mandated minimum standards I have just described. Here, I want to make clear that I am not simply saying that unions are better agents for the enforcement of these laws, although unions play a critical role in informing workers about their rights, financing meritorious litigation and providing a counterweight to employers’ ability to engage in strategic litigation. Rather, I am suggesting that collective bargaining is both a more coherent and comprehensive system of regulating the workplace. First, collective bargaining creates a new entity, the union, to serve as the agent for enforcement of workers’ rights. In our decentralized system of collective bargaining, the union is organized in each workplace and so it does not suffer from the same disability as the federal or state governments and their far-flung inspectors. The union is physically present in each workplace through elected local union officers and stewards and therefore identifies violations as they occur and seeks to remedy them. Third, by acting collectively through a union, no individual worker is forced to take the very difficult step of individually coming forward and accusing his or her boss of misconduct. Furthermore, because unions almost uniformly negotiate just cause protection in collective bargaining agreements, workers’ fear of retaliation for exercising their rights is significantly reduced. Fourth, the system of collective bargaining produces a form of transparency in labor relations that ordinarily does not exist in nonunion workplaces. In other words, standards for promotion or for transfers to other jobs are made explicit, the reasons for discharge must be stated, and so on. This transparency alone reduces discriminatory and arbitrary treatment. Correspondingly, a worker who believes he or she has been unfairly treated typically can resort to a grievance and arbitration system where, in the case of discipline or discharge, workers can state a claim under broad just cause provisions. There is an appropriate avenue through which to pursue a perceived grievance and the avenue leads to a prompt and relatively inexpensive resolution. Workers are not forced to pour all their grievances into a limited set of legal molds. Furthermore, unions have the legal right to be proactive in the enforcement of both collectively bargained and statutory employment rights; in other words, they can solicit potential plaintiffs free of the restrictions that apply to individual’s private lawyers. In a series of cases, the Supreme Court has made clear that concerted efforts to vindicate workers’ rights consisting of educating workers, informing them of their right to sue, and directing them to lawyers or supplying them with legal assistance, are constitutionally protected. Finally, and perhaps most important of all, collective bargaining is a process rather than a set of substantive standards. Therefore, it allows employees in a particular workplace to determine through a democratic process what standards are most important to them. Workers, for example, may trade wage increases for improved health insurance, they can forego short-term benefits in exchange for long-term profit sharing, and so on. On the other side of the table, employers can attempt to convince their employees that the firm would be more successful and thus be able to pay higher wages if, for example, it did not have to adhere to a common industry practice involving specific work rules. Workers participate in creating the law of the workplace, and it is not the inflexible, “one size fits all” law that employers so often decry. Given these features of collective bargaining, we can see why it has played such a crucial role in advancing individual rights, not through litigation, but through the bargaining process itself. To take just one example, despite the unfortunate fact that American trade unionism undeniably has had an exclusionary face in the past, as an empirical matter, collective bargaining has greatly advanced equal employment opportunity. Though Title VII was passed in 1964, a racial gap in earnings persists even after controlling for education, qualifications and other relevant characteristics. Through collective bargaining, however, not only do workers in general earn on average 29% more than their occupationally comparable non-union workers, but this is particularly true for women (31% more), African-Americans (31% more) and Latinos (50% more). (These are from the 2005 U.S. Census figures) In fact, scholars have concluded that one important reason why the racial earnings gap in society as a whole has actually widened during the past 20 years despite a narrowing of educational disparities and a steady increase in Title VII litigation is the declining percentage of workers who belong to unions. The so-called union premium extends beyond wages themselves. Access to a guaranteed employment-based pension is 73% for unionized workers, compared to 16% for non-union workers; 92% of union workers have jobs that provide at least some health insurance, compared to 68% of non-union workers. And while these comparisons pertain to jobs across the board, the union advantage is even greater for the lowest wage jobs that typically consign even full-time non-union workers and their families to sub-poverty compensation levels. Union cashiers, for example, make 30% more than their non-union counterparts; union dining room and cafeteria attendants, 49% more than non-union; union janitors, 31% more than non-union janitors; child care workers – a 27% difference; maids and housekeeping cleaners, a 27% difference; telephone operators – 67% difference. I have suggested the legislated minimum workplace standards – or individual rights – would in many cases not have been passed into law were it not for a strong and vigorous labor movement, that individual rights are inadequately enforced without a strong labor movement, and that even when passed and enforced, individual rights do not sufficiently respond to the workers’ and employers’ needs for industry-specific if not workplace-specific flexibility. Clearly, workplace standards are threatened by the labor movement’s lack of growth, both because these statutes will not continue to be extended and adapted to changing conditions without a strong labor movement and because the mechanisms of government and private enforcement cannot fully substitute for collective bargaining either as means of advancing the objectives of these laws or as a coherent means of regulating the workplace. Furthermore, the union premium comprises more than just the economic differential; the price society pays for the decline of unions in the workplace goes beyond the suppression of wages, and the enormous and widening gaps in the distribution of income and the weakening safety net. Workers who seek unionization are typically motivated as much by the desire to have a greater voice on the job as by the improvement of any particular economic benefit. I am reminded of a registered nurse who testified before Congress as part of a panel on employer interference with employees’ right to organize. The nurse had been employed for some 20 years in a large Southern California hospital that had just been acquired by a national health care chain. She explained that she and her co-workers had no serious complaints about their new employer’s pay rates or benefit levels, but they were furious nonetheless. After years of playing a significant role in all matters pertaining to patient care, the new management had closed off all channels for nurses’ input. Relatedly, training had been cut way back. A friend of hers who was an auto mechanic, this nurse testified, was given more training each year to care for cars than she and her co-workers were now getting to care for human beings. I tell this story because what motivated the nurses at this California hospital to seek out a union was the plain desire to have their voices at work restored. There was obviously no statutory obligation requiring this national chain to keep providing the same level of professional training to the nurses, much less to let them participate in developing patient care routines. With collective bargaining, however, the nurses were ultimately able to require management to engage their democratically elected representatives and negotiate a return to a system that restored their more proactive patient care role. I stress “ultimately” because the testimony that the nurse gave to Congress described an NLRB election victory, with what had begun and ended with an overwhelming majority of pro-union employees, that nonetheless took some 3 ½ years to achieve. Meanwhile, the employer – the national health care chain – did everything it could to thwart the nurses’ choice for union representation. And these nurses, in the end, were atypically fortunate, because under existing federal labor law, virtually any well-advised employer that sets about to thwart an organizing campaign, is readily able to do so. And after last week’s decision by the NLRB on nurse supervisors in the Oakwood Health Care case, we can anticipate that it will become even more difficult. This from a Labor Board that had already withdrawn coverage under the Act from several other categories of employees: graduate assistants paid to teach classes or perform research, handicapped individuals working as janitors, temporary agency employees seeking to organize with the client employer’s workforce if lacking permission from both the client and the agency, and various classes of employees redesignated as “independent contractors,” such as newspaper carriers. While, as I have explained, the law already places high hurdles in the path of workers seeking to enforce their individual rights or engage in collective activity, the current Administration is further eroding both sets of rights. Two early warning signs at the outset of President Bush’s first term were significant. One was seen in the very first set of Executive Orders that the new President signed a month after taking office. It required all federal contractors and grantees to post on their workplace bulletin boards a notice informing employees of certain rights they have under the NLRA. On first blush, this may have seemed to be something of a breakthrough since the NLRA is one of the few major employment laws that does not require a posting of rights, and the labor movement has advocated such transparency for a long time. As it turns out, however, the Bush Executive Order required only that employees be informed of their right under the law not to join a union and not to pay union dues. No need for employers to bother including anything in the posting about workers’ affirmative right to join, their right to organize, right to bargain, right to be free from reprisal for engaging in concerted activity, and so on. The other early Bush Administration telltale sign was a posting on the Department of Labor’s official website. This was a notice to the employer community, from the Assistant Secretary of Labor for Employment Standards, informing businesses that the Department’s chief mission in the new Administration’s first year was to become more business-friendly. DOL, the notice explained understood how unfair it is expecting American companies to understand and adhere to the many complicated and confusing sets of employment regulations – and the Department pledged to become more user friendly for its number one constituency. Far from this being an idle promise, DOL has come through with flying colors from the business perspective. In the first five years they reduced Wage & Hour staff by 12% and OFCCP employment discrimination staff by some 15%. In one of their first acts, they scrapped completely the ergonomic injury regulations -- ten years in the making starting under DOL Secretary of Labor Elizabeth Dole; they repealed the Responsible Contractor Procurement Regulations that simply required that contractors’ compliance with employment laws and other state and federal statutes be one criterion for eligibility to get government contracts; they have stopped in their tracks the safety equipment and virtually all other OSHA rulemaking; and they significantly weakened overtime regulations protecting white collar employees, just to cite a few examples that have been high up on business’s hit list. Not to believe, however, that these actions merely reflected a knee-jerk anti-regulatory ideology, however, since none of this deterred the Administration from imposing the most expensive, onerous, and resource-intensive new reporting regulations on unions – ones that are far more burdensome than what Sarbanes Oxley or any other government requirement imposes on corporations; one that increased the AFL-CIO’s own annual DOL filing to 850 pages, after the new rules took effect. Nor was DOL deterred from increasing during these same five years its staff that audits union finances, by 33%. Ironically, despite this all-out assault by the Bush Administration against workers’ efforts to assert both their collective and individual rights in the workplace, survey data demonstrates that workers increasingly want union representation and that the shrinking percentage of those that have it are highly satisfied. (See, for example, February 2005 survey by Hart Research Associates, finding that 57% of workers stated that they would definitely or probably vote for a union if an election were held tomorrow in their workplace, compared to only 35% who said they would vote no). Thus, while there is a high level of satisfaction within the shrinking sector represented by unions, while more than five times the number of those represented apparently would like to be, and while the objective value of representation remains high as measured by the union wage and benefit premium – the vast majority of workers, even those covered by the NLRA, are unrepresented and will remain so until we change the cultural and political status quo. Which is probably a good place to return to the worker center initiative. Because into this void, or at least into the context of this decline of collective bargaining, have stepped these new forms of worker representation. And many of them are truly doing remarkable things, in remarkable ways, in taking on large corporations as well as private homeowners and small, fly by night contractors, to vindicate the most egregious non-payment of wage claims of a worker or small group of workers here, or the most outrageous health and safety abuses of a few workers there. But it is necessarily a scattershot approach, and one which rarely can achieve lasting results to scale of any kind. It is an approach that is centered on the protection of individual rights --- albeit in new, creative, and highly energetic ways that often bring the force of the entire community to bear, but without the institutional power and legal structure that unions can bring to ensure that the achievements extend to the collective body, and endure. So it seems to me the challenges are 1) how do we create the institutions which allow on more than an ad hoc basis for the worker centers to do what they do so well: pool resources, educate workers about their workplace rights, enforce standards; 2) what are the opportunities for Unions to help worker centers to do this on a sustainable basis and in a way that ultimately can lead to legal recognition by those controlling the workers’ workplace conditions; 3) how, together, can worker centers and unions organize a new workforce in today’s newer industries, particularly in the service sector, where the existing labor and employment laws are particularly out-dated; and 4) how, in those industries such as building and construction where both labor movements are active, can we integrate the best of what both have to offer. In the short term, the kinds of collaboration seem fairly obvious:
Gradually, however, the goal should be to institutionalize these relationships in a more comprehensive way. Unions have extensive involvement in policy and legislative initiatives on the local, state and national levels; they have significant experience in corporate research and industry anaylsis that they apply to organizing campaigns; they bring financial resources and grass roots mobilization to bear in political campaigns to achieve gains in these areas, gains that typically benefit workers in general, not just those covered by their collective bargaining agreements. And even though the AFL-CIO through its Voice at Work Program has seen tangible results in its efforts to educate and enlist community allies – church groups, civil rights organizations, academics, students, public officials, and others – in the struggle to protect workers’ rights to have unions, unions are still far too isolated, compounding the problem of their shrinking density in today’s economy. For their part, in addition to the community ties, the moral legitimacy that they often carry, and the high levels of energy, creativity, and commitment that many are bringing to the fight, the worker centers offer access to and knowledge of a constituency that has been largely ignored by the organized labor movement, and even when not ignored is often poorly understood. 15% of the U.S. workforce is foreign born at present, but of far more significance is that it constituted 50% of its growth last year. And while Latinos comprise just 14% of the workforce, they made up 40% of the 2.1 million growth in the workforce last year. Moreover, their presence in industries represented by the organized labor movement is particularly high: one third of all Latino employment is currently in construction, for example. Finally, we should keep in mind that on May 1 the Latino, immigrant community turned out the largest mass demonstration that the city has seen in decades, just as it did in cities throughout the country on that day. As I mentioned earlier, some unions and some worker centers have begun to recognize their mutual interest in learning more about each other, in offering mutual assistance, and even in integrating their operations. Here in Los Angeles, the painters local has worked out a remarkable arrangement with the NDLON day laborers whereby the union gives the worker center a list of contractors that are undermining their wage and benefit standards. NDLON in turn agrees not to dispatch their day laborers to any of the contractors on this periodically updated list. Furthermore, NDLON serves as an eyes and ears for the painters, regarding these non-union contractors, what they’re up to, where, etc. And in exchange, the painters are reserving a designated number of positions in their apprenticeship program for NDLON’s members, positions that are leading to good, lasting, union jobs. The challenge in the future will be not only to replicate these kinds of collaboration, but to institutionalize the relationships further, to integrate the sharing of common targets, the training and education, the research and analysis, the prioritizing of legislative goals and campaigns, and even the development of new, joint membership structures. The challenge is a major one, but the potential is enormous, and the need is critical. For no matter how impressive the worker center movement is, the decline in union representation in this country will not be offset by an increase in statutory or common law protection of individual workers, but rather will be exacerbated by ineffective enforcement and decay of workplace regulation. If we remain committed as a mixed society – a society that both permits economic freedom and prevents the worst forms of economic exploitation, a capitalist society that enforces democratically adopted norms in the workplace – then we |
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