By Michael Hayes
September 3, 2012
For more than 75 years, American workers have had legal rights to work together to improve their jobs and their workplaces. But the effectiveness of these rights has diminished over the past 30 years, and now it's questionable whether they're meaningful at all. Should those rights be revitalized, or should employment rights and policies move in a new direction for the coming years and decades? A presidential election is the perfect time to discuss, debate and ultimately decide this important question. But in the 2012 cycle, the issue seems largely ignored by both campaigns. Still, as workers we have a few questions — and we insist on some answers from both the Republicans and the Democrats:
When an employee is legitimately unhappy in the workplace or with the terms of employment, should he or she have any options but to quit and try to obtain a better job? (A challenging prospect with the unemployment rate over 8 percent.) Should the law prevent an employer from moving employees' jobs overseas to punish employees if they dare ask for better terms and conditions of employment? And why did unions' rating of the voting record of GOP vice-presidential nominee Paul Ryan (whose family's construction business has employed union-represented workers for decades) drop from 26 percent as recently as 2007 to 0 percent last year?
The current disregard of workers' rights and interests is all the more surprising — and disappointing — because the strength of worker rights has a direct impact on other key questions, such as all Americans' standard of living, their retirement security and income, and access to health care. As worker rights have eroded, these other aspects of Americans' quality of life have also declined. And that's no coincidence.
Most American workers believe, according to recent studies, that they have the right to complain, protest and demand changes at their job without being fired or disciplined. Those rights exist, but they aren't rooted in the First Amendment as some employees believe; the First Amendment and the Bill of Rights do not cover non-government employers. But since the 1930s, under the federal National Labor Relations Act (NLRA), whenever two or more employees complain or protest or demand from their employer changes in the terms of their job and/or the conditions of their employment, their employer cannot retaliate against them for that. The employer does not have to give the employees what they're demanding or give them anything at all. But the employer has to respect employees' rights to seek improvements.
Although workers have been guaranteed these rights for three-quarters of a century, that doesn't mean workers can count on them if their employer (or any supervisor) wants to punish employees for expressing views. First, because worker rights are not granted by the Constitution, they can be taken away any time a majority in Congress chooses to do so. And in recent years, many leading members of Congress have announced their desire to do just that. In addition, worker rights are only as safe and strong as the interest and ability to protect them of the NLRB, the agency given exclusive authority to enforce those rights. The NLRB's resources and remedies to guard the rights of workers are limited under the best of times, and the past couple years — when Congress has failed or refused to confirm most of its top officials and has subjected the agency to nearly constant criticism and pressure — are far from the best of times.
The possible fate of worker rights might be revealed by the recent history of American labor unions, because the NLRA gives employees the right to form, support and be represented by unions or other labor organizations. In the 1950s, more than a third of nongovernment employees in the U.S. were union members, and that percentage remained higher than 25 percent until the early 1980s. Many employees not represented by a union worked for employers who, to avoid unionization, matched or nearly matched union compensation and protections. Major corporations, like IBM, Kodak, Texas Instruments and Xerox, functioned under this model.
The influence of union agreements led to features of American workplaces and life that are familiar to most Americans, though for many those things no longer exist. For decades, pay increases were annual or at least regularly granted. Most American workers also had guaranteed pensions or other retirement payments to be provided by the employer, a key part of the "three-legged stool" (Social Security, retirement benefits of employment, and personal savings) approach to lifelong earnings. Employer-provided health insurance also became common.
But in 2012, many of us in the workforce deal with a very different way of making a living. Since the early 1980s, income (adjusted for inflation) for the middle 60 percent of Americans has stagnated or declined. In roughly the same period, the pension/guaranteed payment leg of the retirement income stool was removed, as the great majority of employers — especially in the private sector — converted to 401(k) and other employee (and, sometimes, employer) contribution plans. When seen as a matter of risk, much of this part of the employee/employer relationship was foisted onto the worker, who now is responsible for saving and investing wisely for retirement. Slowly but inevitably, employers are getting out of the pension business.
It's the same with health care: The percentage of employees with employer-provided health insurance began declining in 2000 and has steadily dropped by 10 percent since. It is expected to continue to decline, regardless of the fate of the Affordable Care Act.
All of this happened while workers brought in ever more value for their employers: Labor productivity increased an average of 2.1 percent annually in the 1990s; 2.5 percent per year in the 2000s, and close to 2 percent the past few years. We seem to be determined to keep going for the boss, regardless of what he thinks of us.
All Americans deserve to be part of a real conversation about what we want "work" to look like and be like in the 21st century. We can no longer tolerate politicians getting into office with hardly a word about what they'd like to do about worker rights and labor unions. As vague as politicians have been about what they'd actually do to create new jobs, most have been far less informative about their preferences, much less their plans, for the future of protecting workers in jobs that already exist.
Returning to the three questions asked earlier, perhaps we are now living in an era when the nation's labor law has eroded to the point where dissatisfied American employees have no option to make things better in their work and their lives, unless they are lucky enough to quit and get another, hopefully better, job. Their current employer can't or won't do anything, at least anything that costs any money, to make things better. They can fire any employee who suggests another way.
Perhaps now if employees ask for improvements in their workplace or job terms, employers should have complete freedom to punish employees by moving their jobs far away, even overseas, and to tell employees that it's being done because employees dared asked for more. The Romney-Ryan campaign website promises to sign a law, already passed by the U.S. House, which would remove the only meaningful legal remedy that prevents U.S. employers from doing that now.
And perhaps now, as many commentators have observed, employees should have no genuine and enforceable right to union representation.
If the Romney or Obama campaigns believe this is how things should be, they must tell the voters. We deserve to know, we demand to know, if this is where we are as a nation of workers, blue and white collar, skilled and unskilled. Because if this is the way things are now and for the foreseeable future, well, we have some work to do: reclaiming our place as a global stronghold of innovation and inventiveness. Rediscovering the economic power and stability that come with an empowered and inspired workforce. And serving as a beacon for self-improvement and self-respect, a light that reflects proudly on American goods and services in a changing world.
Michael Hayes, an associate professor in the University of Baltimore School of Law, specializes in employment and labor law, employment discrimination and collective bargaining. His email is firstname.lastname@example.org.
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