Saturday, October 17, 2009

The Inadequate Costs of Labor Law Violations

Employers have little reason to abide by the National Labor Relations Act (NLRA), as the financial disincentives of violating the law are minimal. From firing, demoting, or retaliating against workers for their support of a union to ignoring their duty to negotiate a contract, many employers blatantly violate the NLRA.

Other major federal employment laws impose fines or damages on employers who break the law. Yet the NLRA’s nominal deterrents do little to prevent employer lawlessness compared to the costs of violating minimum wage, discrimination, and health and safety protections.If passed, the Employee Free Choice Act will address the insufficient law by increasing penalties on those who break the law and giving workers the just compensation they deserve. There is a Solution: The Employee Free Choice Act.

The Employee Free Choice Act would restore balance and level the playing field during the union organizing process. The bill requires the NLRB to seek injunctive relief to reinstate workers when it has reasonable cause to believe their rights were violated. Under current law, injunctions are only required against significant violations by unions, creating an unbalanced system tilted in management’s favor.

This reform will give workers who have been wrongly fired an opportunity to go back to work without unreasonable delay. As importantly, this law will help end the chilling effect, sending a loud and clear message to others that their job security isn’t on the line for supporting a union.

Every year, the Bureau of Labor Statistics (BLS) releases its calculation of union membership. For 2005, the BLS calculated that 36.5% of public employees were union members and 7.8% of private employees were union members, for a total of 12.5% in the labor force.

The right to organize and bargain collectively under the protection of law is the bedrock upon which workers are able to form or join a labor union. American labor law has not kept pace with the changing nature and face of the modern workplace and increasingly excludes more and more workers from this legal protection.

140,715,996 - total civilian workforce
- 6,178,980 - self-employed not independent contractors
- 10,342,430 - independent contractors
- 412,468 - domestic workers
- 507,697 - agricultural workers without rights
- 3,780,889 - small business employees
- 13,054,970 - supervisors and managers
- 5,390,401 - public-sector workers without rights

= 107,048,161 workers in the civilian labor force with collective bargaining rights, eligible to join a union, and the relevant denominator in a union membership rate calculation.

In December 2005, the AFL-CIO commissioned a nationally representative survey by Peter D. Hart Research Associates, in which 53% of non-union workers employed for pay responded that they would like to join a union.

Based on this survey, the AFL-CIO states that 60 million people (53% of the 112,878,000 non-union wage and salaried workers reported by the BLS for 2006) would like to have collective representation and bargaining via a union, but do not.

The Employee Free Choice Act will help address this unfair situation. Congress needs to clarify or expand the definition of “employee” under the National Labor Relations Act (NLRA) to better reflect the realities of today’s workforce. Several bills have been introduced that would restore collective bargaining rights to employees wrongly categorized as supervisors, independent contractors, and students, and would strengthen the law’s protections of immigrant workers. Addition help should come from President Obama's appointment of prolabor members to the National Labor Relations Board and judges to the federal courts to better uphold the NLRA’s mission to promote collective bargaining, and reverse the course of the Bush Administration to narrow the law’s coverage.

Download the full article as a PDF.

For questions on data sources and variables used, data analysis, and the comparability of this report to the GAO’s work, please contact Julie Martínez Ortega, Ph.D., J.D., Director of Research, American Rights at Work, at 202 822 2127 x103 or

American Rights at Work is a nonprofit advocacy organization dedicated to promoting the freedom of workers to organize unions and bargain collectively with employers.

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