In January 2009, Human Rights Watch issued a briefing paper entitled Employee Free Choice Act: A Human Rights Imperative. The paper details some of the glaring deficiencies in current US labor law that significantly impair the right of workers to freely choose whether to form a union. It recommends that the US Congress pass the Employee Free Choice Act to help remedy these shortcomings and bring US law closer to international standards. Arvind Ganesan, Director of Business and Human Rights at Human Rights Watch, brings us this week’s ViewPoint.
When President Obama was campaigning, he promised to support the Employee Free Choice Act. The EFCA, as it is known, would strengthen workers’ rights protections in the US and bring them more in line with international standards that the US claims to support. Former President George W. Bush promised to veto it if it ever hit his desk, but now with a Democratically-controlled Congress and White House, there’s renewed momentum to pass the bill. And–predictably– outspoken opposition.
EFCA would stiffen currently weak penalties against employers who violate labor laws. It would not undermine the principle of a secret ballot, as some anti-EFCA groups charge. Instead, it would give workers the choice of an election or card-check, preserving their right to a secret ballot if they, not their employers, choose.
Current US labor law is a lamb where workers need a lion to champion their rights. It lets employers do all sorts of things to keep workers from unionizing. They can stage one-sided, aggressive anti-union campaigns. They can deny union organizers a chance to respond or even state their views. They can force a union election on workers in order to use the pre-election period to campaign against the union.
Even if employers break the law, the penalties are so trivial that companies often treat them as a cost of doing business. Say an employer threatens to close the workplace or suggests employees might lose their benefits if they unionize. The penalty is to post a notice in a lunchroom or some other prominent place promising not to do it again. If they use security cameras to spy on workers who are organizing, the cameras just have to be readjusted.
Worse still, if an employer illegally fires, demotes, or suspends a worker for trying to unionize – the penalty is to reinstate her to her previous post and pay back wages, minus any she earned in the interim. Pretty cheap for an employer, since a few thousand dollars in wages is a nominal cost to thwart a union. And the years of legal wrangling it takes to resolve these cases, means workers often move on to new jobs because they can’t afford to wait for reinstatement.
Then there are the enforcement delays. Workers wait about nine months for an administrative law judge to issue a decision in their case. It takes an average of over three years between that filing and a decision on any appeal to the full National Labor Relations Board in Washington, DC.
These obstacles are often too big for a worker or a nascent union to overcome. Even if they do, they may not be able to reach a collective agreement because the law doesn’t really punish employers who engage in bad-faith negotiating. All that’s required is to start the negotiations over, leading to a Groundhog Day-like cycle that doesn’t resolve a thing. An employer can basically wage a war of attrition, and win.
EFCA would strengthen workers rights, not undermine them as so many of its opponents charge. And in a time of grave economic uncertainty for millions, protecting the rights of individual breadwinners is a change we need.
For the Sea Change ViewPoint, I’m Arvind Ganesan of Human Rights Watch.