Rep. Keith Ellison (D-MN) recently announced plans to introduce legislation that would make labor organizing and union activity a legally protected civil right. Inspired by the work of TCF fellows Moshe Marvit and Richard Kahlenberg (who detail just such a proposal in their book Why Labor Organizing Should Be A Civil Right), Rep. Ellison has taken up their mantle and seeks to codify this needed change into Federal law.
I have detailed the merits of such a proposal in the past. Although the National Labor Relations Act (NLRA) already makes it illegal for an employer to fire or otherwise discipline employees for their union activities, the negligible penalties associated with the violation of this right do not deter corporations from regularly taking adverse action against union-friendly employees, especially as employer opposition to unions has intensified.
Many forms of employment discrimination are illegal. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, religion, gender, and national origin. The NLRA prohibits employment discrimination on the basis of union activity. But the procedures and remedies available through the Civil Rights Act make it much more effective as an anti-discrimination measure than the NLRA.
The NLRA and the Civil Rights Act, Compared
At present, if an employee is fired, suspended, or harassed, or experiences a reduction in hours or pay, and feels that that action is due to her race, gender, religion, or national origin, or due to an attempt to join or form a union, that employee can file a charge with a federal agency. If the adverse employment action stems from union activity, that charge is filed with the National Labor Relations Board (NLRB). If it stems from the race, religion, sex or national origin of the employee, that charge is filed with the Equal Employment Opportunity Commission (EEOC)
When an employee files a charge with the nearest regional branch of the National Labor Relations Board, that branch conducts an investigation. If that investigation yields sufficient evidence for a claim, the NLRB files a complaint against the employer.
The NLRB also may elect not to file a complaint, at which point the aggrieved employee’s only recourse is to appeal to the NLRB’s general counsel. The decision of the general counsel is final.
In these cases, it is the NLRB, not the employee, that serves as is the prosecuting party. There is no alternative, private right of action available to that employee in the event that the NLRB investigates and concludes that the evidence is insufficient to file a complaint against the employer
And, if and when the NLRB does file a complaint on behalf of the employee, there are still more steps before any justice. Neither the administrative law judge (ALJ) before whom the hearing is conducted, nor the five member NLRB board to which the ALJ’s order is appealed, possess enforcement powers. The prevailing party before both the ALJ and the NLRB must seek enforcement from a federal court of appeals.
This extended process is the only remedy available to employees discriminated against for union activity. It often means waiting for years before any resolution, and the remedies are “so late and so weak that it may pay to violate the law,” according to Penn State labor law professor Ellen Dannin.
In the end, the penalties levied against employers for illegal firing under the NLRA include reinstatement of the worker with back pay, minus any wages earned from a separate employer during the period of unlawful discharge.
Civil Rights Act Process
The Equal Employment Opportunity Commission administrative process is broadly similar to that of the NLRB. Employees suffering from employment discrimination similarly file a charge, which may be investigated by the EEOC office closest to where the discrimination took place.
Once an investigation is complete, the EEOC either pursues a hearing before an EEOC administrative judge, or simply issues a decision about whether the alleged discrimination occurred.
The EEOC process is distinct from that of the NLRB processes in that, under Title VII, the employee may opt out of the EEOC process and request a “notice of right to sue” that would allow the employee a private right of action in federal court. This option can be requested from the EEOC any time after 180 days since the filing of the complaint.
Additionally, plaintiffs under Title VII have access to a jury trial and the right of full pretrial legal discovery. These procedural options are powerful tools that enable plaintiffs to much more effectively make their case (yet they are unavailable under the NLRA).
Remedies resulting from this course of action include restoration of lost wages and benefits, as well as compensatory and punitive damages designed to punish employers that engage in intentional discrimination. The amount of compensatory and punitive damages that an unlawfully discharged employee may receive is capped at $300,000.
Ongoing Need for New Legislation
The recent efforts to organize workers at fast food restaurants makes clear the continuing need for Rep. Ellison’s legislation. Although the Fight for 15 campaign has certainly influenced the national discourse over the minimum wage, the movement has not led to collective bargaining agreements for workers at fast food restaurants.
Part of this failure is that employers repeatedly exploit the known weaknesses in the NLRB process. Just last week, it was reported that the NLRB is investigating allegations that nine McDonald’s workers were fired “for their union involvement and organizing activities.” The workers also alleged that they were suspended, had their hours cut, and were threatened on account of their union involvement.
At the conclusion of the NLRB investigation, the best remedy available to the McDonald’s employees is merely reinstatement and back pay, and no additional damages designed to deter McDonald’s from firing any additional union friendly employees.
While this investigation is taking place, the momentum for Fight for 15 campaign is stalled. The nine pro-union employees are removed from the workplace, and this action serves to deter any union-friendly impulses within the remainder of the McDonald’s staff.
Had Rep. Ellison’s legislation been in effect, the nine fired McDonald’s employees would be better protected against employment discrimination due to their union activity. The strong compensatory and punitive penalties provided by Title VII, which are aimed at punishing unlawful corporate behavior, would much more effectively deter McDonald’s than mere back pay, which at McDonald’s amounts to $9.08 an hour, on average.
Title VII > NLRB
While the EEOC and NLRB processes have some similarities, the private right of action and the ability of an employee to move his or her case to federal court provide much more effective remedies to employees subject to Title VII employment discrimination. The enhanced punitive and compensatory damages are far better at deterring unlawful corporate behavior than the mere back pay and reinstatement provided under the NLRB.
To begin the process of making the right to organize one that comes with a remedy that deters violations, making labor organizing a civil right, as proposed by Rep. Keith Ellison, is an appropriate first step towards that goal.
Listen to Tep discuss this topic on The Rick Smith Show.
Photo by Flickr/Judy Baxter