Tuesday, December 11, 2012

What Does "Right to Work" Mean?

The last several days and weeks in Michigan (my home state) have been intense as legislation pended regarding making Michigan a "right to work" state.  Today Michigan Governor Rick Snyder signed the legislation into law, inciting a mob scene at the Capitol in Lansing.  But what exactly is a "right to work" state and why did it spark such controversy and anger amongst many people there?

Michigan is only the 24th right to work state as of this week.  A right to work law simply prohibits union security agreements.  While the Taft-Hartley Act outlawed "closed shops" (agreements that required employers to only hire union members), it is still lawful to require employees to pay union fees if a union security agreement is in place in a workplace (the "union shop").  Despite the term, "right to work," it is not any sort of guarantee or literal right to people seeking work.  Many argue over the pros and cons of right to work laws and the jury is still out on whether it benefits the economy by being a right to work state.

Pros and Cons of Right to Work Laws

Proponents of right to work laws hang their hat on the Constitutional right to freedom of association and that it is unfair to require employees to be forced to pay union dues as a condition of continued employment.  Opponents argue that right to work laws create free rider problems whereby employees who don't pay union dues benefit from due-paying employees, essentially earning a subsidy on benefits earned under the collective bargaining agreement.  It is also arguable that right to work laws weaken unions substantially, which is typically why Republicans tend to be right to work advocates.  After all, if employees can obtain all of the benefits of a union without paying for them, why would anyone pay and this would potentially lead to the elimination of the union altogether due to lack of support. 

Economic Impact of Right to Work Laws

As mentioned above, it is still unclear precisely if right to work laws are beneficial for the economy.  However, the Economic Policy Institute (EPI)a non-profit, non-partisan think tank, says the laws and other anti-union measures lower wages—for both union and non-union workers alike—by an average of $1,500 per year, after accounting for the cost of living in each state.  Other findings from the EPI's February 2011 report found:

  • Wages in right-to-work states are 3.2% lower than those in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic variables as well as state macroeconomic indicators.  
  • The rate of employer-sponsored health insurance (ESI) is 2.6 percentage points lower in RTW states compared with non-RTW states, after controlling for individual, job, and state-level characteristics. If workers in non-RTW states were to receive ESI at this lower rate, 2 million fewer workers nationally would be covered.
  • The rate of employer-sponsored pensions is 4.8 percentage points lower in RTW states, using the full complement of control variables in our regression model. If workers in non-RTW states were to receive pensions at this lower rate, 3.8 million fewer workers nationally would have pensions.

Many states justify right to work laws as a way to survive with several states in New England and in the northern Midwest are now considering right-to-work proposals.  Recognizing that businesses are magnetized to right to work states makes it necessary to revisit our country's history with the labor movement and why a trend of right to work states will set us back decades to before the New Deal.

The Workplace Pre-New Deal

Prior to the New Deal, every single state in the United States was a right to work state.  Though the free labor market was an important factor in the rapid economic growth of the union after the Civil War, many critics began arguing that employment at-will was a sham given the overwhelming bargaining power of businesses and corporations.  The disparity in bargaining power led to the uprising of labor unions who tried to reform the industrial labor-relations system.  Early efforts toward this end usually involved a a voluntary association of workers who attempted to work in aggregate to bargain with employers on conditions of employment, wages, hours, etc.  The problem was that employers didn't have to bargain with unions and could fire employees who were a part of unions.  The only other thing employees could then do was go on strike but employers could then simply replace them with other workers who needed the work.  Employees were simply unprotected and at the mercy of employers.  

As employers began using the court system to prohibit strikes, the need for legislation to address employer-labor relations became apparent.  Slowly over time, unions found their way through New Deal legislation and the 1935 National Labor Relations Act (NLRA) (or, the "Wagner Act").  The NLRA, among many other things, required employers to bargain with whatever union the majority of the employees chose and any resulting collective bargaining agreement could include requirements that an employer only hire union members (the "closed shop") or force new employees to join the union (the "union shop")--which was later made unlawful, if a state chose, with the passage of the 1947 Taft-Hartley Act.  However, at last, labor now had laws to give them greater bargaining power when approaching employers for better working conditions and terms.  But with the passage of right to work laws, currently unionized employees could find themselves virtually on-par with at-will employees all over again.

It is left to be seen the effects of the right to work law in Michigan but if the statistics hold true, Michigan employees might soon see a dip in their wages and benefits due to weakened union power.  

Monday, December 10, 2012

EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace

The Americans with Disabilities Act Amendment Act (ADAAA) was enacted to address the heavy burden plaintiffs faced in court in proving disability discrimination.  With expansion of those rights in the workplace the Equal Employment Opportunity Commission (EEOC) has announced that it will use the ADAAA to target unaccommodated pregnancies that the Americans with Disabilities Act (ADA) (which doesn't consider "ordinary" pregnancy a disability) and Title VII (under the Pregnancy Discrimination Act (PDA)) did not previously protect.  Specifically, EEOC Legal Counsel Peggy Mastroianni asserted that with the expansion of covered disabilities under the ADAAA, certain common pregnancy-related conditions such as gestational diabetes, carpal tunnel syndrome, sciatica and anemia may now be deemed covered disabilities.

"Ordinary" pregnancy is not covered under the ADA and under the PDA, courts have held that employers generally haven’t been required to provide accommodations for pregnant women unless they provide them for “similarly situated employees” with temporary disabilities.  Coupled with the EEOC's new strategic plan, earlier I wrote about the legislation currently in the works in Congress, the Pregnant Workers Fairness Act which seeks to protect pregnancies and require employers to accommodate pregnant workers unless they can prove an undue hardship.


Pregnant workers, especially those with complicated pregnancies who are having trouble obtaining accommodations in the workplace are highly encouraged to seek legal counsel and advice as it could lead to assisting in the expansion of pregnant workers' rights under the ADAAA.

EEOC Files Suite Against UPS for Firing Jehovah's Witness Over His Request to Attend Annual Service

The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit against package delivery company, United Parcel Service (UPS), alleging it violated Title VII when an employee at their Saddlebrook, New Jersey facility was terminated because of his request to attend an annual Jehovah's Witness service.  

From the EEOC press release on the lawsuit: 

According to the EEOC's suit, UPS failed to accommodate the  request of a newly hired truck loader at its Saddle Brook, N.J. facility to  modify his schedule so that he could attend the Memorial of Christ's Death, an  annual religious service, pursuant to his beliefs as a Jehovah's Witness.  The employee requested that he either start a  different day, start later than his scheduled time on his start date, or be  given an hour's leave during his shift to attend the ceremony and return to  work.  UPS denied his request, the EEOC  said, requiring that he report to work as scheduled, and told him this was  non-negotiable.  When the employee  refused to compromise his religious beliefs and attended the Memorial instead of  reporting to work, UPS fired him.  UPS  also assigned him a "do not hire" status, and refused to hire him when he  applied for a different position at UPS's Staten Island facility.
This alleged conduct violates Title VII of the Civil Rights  Act of 1964.  The EEOC filed the lawsuit  in the U.S. District Court for the District of New Jersey (Civil Action No.: 2:12-CV-07334)  after first attempting to reach a voluntary settlement out of court.
Religious accommodations are similar to accommodations made for disabilities.  They are not automatically granted and are only disallowed if the employer can prove the accommodation would prove to be an "undue hardship."   

Tuesday, December 4, 2012

Obama Quietly Signed Law Protecting Federal Whistleblowers

Recently, President Obama signed a law that had been struggling to pass in Congress for 13 years.  The Whistleblower Protection Enhancement Act (WPEA) affords greater protection to federal employees who expose fraud, waste and abuse in government operations.  The WPEA closes loopholes created by court rulings, which removed protections for federal whistle-blowers. One such loophole specified that whistle-blowers were only protected when they were the first to report misconduct. 
The whistle-blower law makes it easier to punish supervisors who try to retaliate against the government workers.

Despite this significant passage, the Government Accountability Project (GAP) still says there's still more protection needed for federal employees.  The WPEA does not include jury trials to enforce newly-enacted protections, or the extension of free speech rights to national security workers making disclosures within agency channels. While the House removed the national security whistleblower provision from the bill, last month the Obama administration made good on its promise to take executive action on those rights, signing a Presidential Policy Directive to restore the lion's share of national security rights that the House removed.


1.) Expanded Protection for Disclosures of Government Wrongdoing
  • Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
  • Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
  • Cancels the 1999 precedent that translates "reasonable belief" to require irrefragable proof ("undeniable, uncontestable, or incontrovertible proof") before they are eligible for protection. (Sec. 103)
  • Protects government scientists who challenge censorship. (Sec. 110)
  • Codifies and provides a remedy for the "Anti-Gag" Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)
  • Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
  • Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
  • Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
  • Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation. (Sec. 114)
  • Requires that the President's exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)
  • Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
  • Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)
  • Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).
  • Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)
  • Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))
  • Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116)