labor law

Left Behind: Employees of Small Employers and the Right to Unionize

Dmitri Iglitzin — Sun, 18 Jan 2009 11:21:47 -0500

Non-unionized musicians at a small Seattle-area symphony orchestra, the Bellevue Philharmonic Orchestra (BPO), have grown deeply dissatisfied with the way management treats them. Eighty percent signed a petition asserting their desire to join the Musicians' Association of Seattle, an affiliate of the American Federation of Musicians. As is typical of employers throughout the country, even when confronted with evidence of the overwhelming desire of their employees for union representation, the BPO has refused to agree to this request.

Under the proposed Employee Free Choice Act (EFCA), employers covered by federal law would be forced to recognize their employees’ preference to be represented by union based upon this type of written showing. The business community is adamantly opposed to this measure, considering it, as President-elect Barack Obama stated on January 15 of this year, “the devil incarnate.”

Ironically, because the BPO musicians work for an orchestra too small to be covered by federal labor law, they will be left without any protections even if EFCA passes. This is because workers who work for companies that are too small to meet a certain monetary threshold typically have no rights at all when it comes to seeking the right to select or create a union to represent them in negotiations with their employer.

In 1999, example, the 50 or so musicians who made up the orchestra portion of Seattle's Civic Light Opera (CLO), a musical theater company, also decided that they wanted to join the Musicians' Association. More than 80 percent of those musicians also signed authorization cards stating that desire.

They never got their union, however. Nor did they get to vote in an election on the issue. Because the primary federal labor law, the National Labor Relations Act (NLRA) excludes theater orchestras that have an annual revenue of less than $500,000, as well as symphony orchestras with an annual revenue of less than one million dollars, these employees had no legal right to either form or join a union.

So when the musicians of the CLO did what workers have always done when they have no other recourse—strike—they did so without any of the protections they would have had were they deemed employees protected by the NLRA. Their employer responded to this job action by firing all of the striking musicians, which was completely legal under both state and federal law. Not only did the musicians end up with no union—they ended up with no jobs.

This story is repeated daily in this state and country. It is not merely relatively small orchestras which avoid the obligations of the NLRA, but all small employers. According to a 2002 report from the United States General Accounting Office (GAO), about 5.5 million employees nationwide are excluded from the protections of the NLRA as a result of the “small employer” exception.

It's too soon to tell whether the BPO musicians, despite their lack of legal protections, will succeed in their efforts to be represented by the Musicians' Association. A bill has been introduced into the Washington State Legislature that would grant employees of symphony orchestras, operas, and performing arts theaters the rights they currently lack. Among other things, this bill would (like EFCA) require employers to grant union recognition to their employees based on “majority sign-up.” Again like EFCA, this bill’s future is uncertain.

Among the most important features of EFCA are its provisions that impose financial penalties on employers for firing pro-union employees, penalties that currently do not exist. Unless the proposed Washington law passes, however, the BPO musicians would not benefit from these protections. Even if the musicians were fired en masse for their efforts to form a union, as happened to their colleagues at the CLO, there would be no federal remedy for them.

Should that occur, it would undoubtedly be a disaster for the musicians, the orchestra, and the community. Beyond that, it would be yet another illustration of the abysmal state of labor law in this country, one which needs to be rectified through legislative changes at not only the federal level, through EFCA, but often at the state level, as well.

Wage Theft Exposed

Isaiah J. Poole — Fri, 14 Nov 2008 10:07:24 -0500

Millions of workers are being robbed every payday, and the federal watchdogs that are supposed to be keeping this from happening are snoozing on the job.

Kim Bobo, the executive director of Interfaith Worker Justice, took her fight against what she calls "wage theft" this week to the Department of Labor, where she said the Bush administration has failed to enforce laws that safeguard worker salaries and prosecute offenders.

In this interview, she explains how wage theft happens and what the next administration and Congress has to do to undo the neglect of the Bush administration, which Bobo said has refused to seek adequate federal resources to police violations.

Countries with Lax Labor Regulations, Bolsters Trade Deficit

Armand Biroonak — Tue, 07 Oct 2008 00:00:00 -0400

Increased trade with countries who have few or no worker protections has resulted in a U.S. trade deficit that is $123 billion more than it would be if we traded with countries of strong labor standards.

Cancerous Conservatism Debilitates Workers

Isaiah J. Poole — Mon, 21 Apr 2008 13:25:40 -0400

Perhaps the ultimate workplace expression of conservative "you're-on-your-own" ideology is FedEx Ground, where all of the workers who deliver packages are not FedEx employees but are independent contractors.

FedEx sells that as "the ability to grow your own business." But for Jean Capobianco, a FedEx contractor who was the subject of a profile in Sunday's New Work Times, it meant that FedEx could fire her for, in effect, having cancer.

FedEx is among the most aggressive users of independent contracting as a way to get out from under the provisions of the Fair Labor Standards Act, the bane of conservative groups like the Heritage Foundation, which derisively calls it a burdensome "Depression-era labor law," and the U.S. Chamber of Commerce, which touts independent contractors as a way to "avoid some of the legal and financial drawbacks of being an employer."

Drawbacks such as paying Social Security and payroll taxes, compliance with wage and hour rules, providing health and other benefits and allowing workers to choose union affiliation should they want to do so.

FedEx, as The Times reports, exercises almost total control over worker schedules, what they wear—even, Capobianco was quoted as saying, how workers wear their hair. Federal law says that workers can only be considered independent contractors if they have a degree of actual independence in setting the terms of their employment. But the Labor Department has been notably acquiescent in what labor activists, and legislators in a number of states, say is rampant abuse of the rules governing classification of independent contractors. In the absence of federal action, states have had to fill the void with court suits and legislation.

There is a bill in the Senate (S 2044, sponsored by Sen. Barack Obama, D-Ill.) that would require the Labor Department to more aggressively police abuses of independent contractor classifications so that employees will in fact have all of the rights of employees. The legislation has not moved very far in the Senate. There were roughly 10 million workers classified as independent contractors in 2005, according to a Government Accountability Office report. Their rights deserve the attention both on Capitol Hill and on the campaign trail.

♦ ♦ ♦

Another conservative outrage against workers—a Supreme Court ruling that makes it practically impossible for workers to file claims against employers for equal pay violations—is expected to get some favorable attention in the Senate this week.

The Lilly Ledbetter Fair Pay Act (HR 2831) would undo the damage done by the court's conservative majority, which ruled that Ledbetter, an employee with Goodyear Tire and Rubber, could not recover damages for being paid less than men doing the same job because she did not discover the pay disparity quickly enough. (Because individual workers' pay is usually confidential, pay disparities could be undetected by workers for years, as it was in Ledbetter's case.)

The House has already passed this bill, and the Senate is expected to act on it Wednesday.

How serious is this issue? Women make 77 cents for every dollar a man makes. In other words, the average woman had to work from January 2007 until today to match what the average man had made by December 31.

The Rise of the Ludlow Democrats

David Sirota — Fri, 18 Apr 2008 10:15:43 -0400

Last week, I published the first of a two-part column series commemorating the anniversary of the Ludlow Massacre, which happened in southern Colorado in 1914. I showed how the legacy of that horrific event is being embraced and exported by our government in the form of the Colombia Free Trade Agreement. This week, my newspaper column is part two of the two-part series: How the massacre's legacy is being embraced in our domestic policy, and by a faction of Democrats we can call Ludlow Democrats.

Many of us know how the Bush administration has abandoned workers, whether it's by underfunding the Labor Department, cutting shady deals with employers like Wal-Mart or making sure the NLRB always sides with Big Business. But under the radar, Ludlow Democrats in states like Colorado are also helping undermine the labor movement.

In the last year and a half, Colorado Gov. Bill Ritter (D) has been repeatedly asked that age-old labor question: Which side are you on? And he has repeatedly answered that question by taking business's side. His first major act as governor was vetoing the most minimal legislation that would have reformed Colorado's draconian labor laws. He then endorsed legislation banning strikes and just recently went on right-wing radio to berate labor's ballot initiatives that would modestly raise workers' wages.

To be sure, Ritter signed an executive order recognizing public employee unions. But to those who say that was some sort of courageous or difficult move, I say "puh-leeze." Are we really supposed to believe it is some sort of gutsy move for a governor to merely recognize employees right to form a union? Remember, this recognition is something employees have in most states. So while I'm glad Ritter issued his executive order, I don't give him much credit for it in the same way I don't pat myself on the back for waking up each morning and getting out of bed.

No, where Ritter has really defined himself is in his aforementioned aggressive moves to undermine the labor movement. Ritter apologists have their rationales about the governor supposedly needing to do all this to appease Republican corporate interests - but last I checked, Democrats control the whole legislature and the governor's office. They don't need to answer to anyone other than the people. So Ritter is choosing his anti-union path.

I don't believe Ritter is making this choice based on corruption. He may be a lot of things, but he isn't bought-off. He's just afraid - afraid of his own shadow, and afraid of Big Money. And the problem is, there have been almost no voices here in Colorado demanding accountability and making him feel electorally insecure for selling out workers. In this state - as in many others - much of the progressive infrastructure is hyper-partisan and not used to putting heat on Democrats. The serious heat seems only to come from the Right.

That's the case in many states - and on many issues in Congress. Much of the new progressive infrastructure is really partisan first - especially when it comes to kitchen table economic and labor issues. And tragically, that has allowed the faction of Ludlow Democrats like Ritter feel free to use their power to wage a war on the labor movement. Yes, the Ludlow legacy is alive and well here in Colorado - and all over the country.

You can read the whole column at the San Francisco Chronicle, Ft. Collins Coloradoan, TruthDig, Credo Action, In These Times or Creators. The column relies on grassroots support, so if you'd like to see my column regularly in your local paper, use this directory to find the contact info for your local editorial page editors. Get get in touch with them and point them to my Creators Syndicate site. Thanks, as always, for your ongoing readership and help contacting local editors. This column couldn't be what it is without your help.