Habitual Offenders

Labor Laws and the Companies that Break Them

This article is from the September/October 1999 issue of Dollars and Sense: The Magazine of Economic Justice available at http://www.dollarsandsense.org/archives/1999/0999habitual_offenders.html

This article is from the September/October 1999 issue of Dollars & Sense magazine.

issue 225 cover

Some labor historians argue the 1947 Taft-Hartley Act was the beginning of the end of militant unionism in the United States. It took the teeth out of unions’ right to strike, a right safeguarded by the 1935 National Labor Relations Act (NLRA). Taft-Hartley barred labor activists from deploying their two most powerful weapons of the Depression years: sit down strikes and secondary boycotts that target those colluding with the employer, like a supplier.

There had been a massive strike wave following the end of World War II, as unionists who had swallowed their demands during the war resumed their struggle. It was a moment, a turning point, when unions could push the gains of the Depression even further. Instead they were beaten back by the Republican Congress elected in 1946.

Taft-Hartley channeled unions to work ever more through the bureaucratic mechanisms of the National Labor Relations Board set up by the NLRA. It shaped unions in the bureaucratic image of the act, making them less able to defend their power or assert visionary, even social democratic demands beyond those won in the 1930s.

Now unions are struggling to get around the restrictions of Taft-Hartley by funding labor/community coalitions like Jobs with Justice that can engage in secondary boycotts. And they struggle to sidestep the bureaucratic mechanisms of the National Labor Relations Act when these no longer work in their favor.

When the AFL-CIO polled Americans in March about their union sentiments, 51% said they would definitely or probably vote against being represented by a union. But 75% said it is important that strong laws defend workers’ right to join unions, and most were unaware of the intimidating tactics employers use to control workers and fight unions. Is labor law our friend or foe? Read on about these laws and decide for yourself.

Abby Scher


Family and Medical Leave Act

Every once in a while, Irene Bradley took time off from her work as a parent advocate with Head Start in Warren County, Ohio to take care of her son Michael, who is diagnosed with bipolar and obsessive compulsive disorders. Sometimes she gave her employer doctor’s notes about Michael’s condition, other times she just called to say she wasn’t coming in. In June, the Warren Trumbull Community Service Agency told her it would not renew her contract because of chronic absenteeism.

"I told them I thought I was covered under the Family and Medical Leave Act," the 1993 law that allows employees to take up to 12 weeks unpaid leave every year (all at once or intermittently) to care for a new baby, a seriously ill family member, or to recover from personal illness. While women’s groups are trying to extend the law to cover those working at firms with 25 to 49 employees, it now applies only to public employees and those at firms with 50 or more employees — about 58% of the private workforce.

The act also gives workers the right to work a part-time schedule, if needed, for medical reasons and requires 30 days notice if a leave is predictable. A worker need not say she is taking time off under the act, but she must say it is for medical reasons.

Believing her rights were violated, Bradley called the president of the local 9to5 chapter, the working women’s organization, who quickly organized a rally outside the agency during Bradley’s appeal with the agency’s board. The agency agreed to renew her contract.

Though she did get her job back, Bradley is not paid on the days she is home with Michael. Now organizations like the National Partnership for Women and Families are lobbying states to allow unemployment or disability insurance to provide some pay during family leaves. Proposals in California, New York, and New Jersey would fund leaves out of the state’s temporary disability system. Campaigns in Vermont, Washington, Maryland, and Massachusetts support using unemployment insurance and in May, President Bill Clinton directed the U.S. Labor Department to write legislation to allow just that.

"It wouldn’t be required — it would be an option," says Heidi Hartmann, director of the Institute for Women’s Policy Research in Washington, D. C. "So there would be a lot of advocacy effort to get states to adopt it."

Abby Scher


The Fair Labor Standards Act of 1938

When is the law not the law? When it is not enforceable. And that is just what federal minimum wage and hour laws are for state workers right now — unenforceable.

It took until the 1980s for state workers to be covered under the 1938 Fair Labor Standards Act, establishing a minimum wage for most workers and time and a half for overtime (now triggered at 40 hours a week). In June, the U.S. Supreme Court told 65 Maine probation officers and juvenile caseworkers they could not sue their employer — the state — in federal courts for violating the act and failing to pay overtime. In a decision widely described as contorted, the Supreme Court determined that suing a state under federal law violates its sovereignty from the feds.

The Supreme Court had already made clear that the workers couldn’t sue in state courts either — then state courts would be adjudicating federal law. This leaves the workers unable to sue in any court and totally at the mercy of the U.S. Department of Labor to defend their rights. Needless to say, the enforcement powers of the Department of Labor ebb with every budget cut and the Supreme Court was mum about directing Congress to fully fund the Department of Labor so the spirit as well as the letter of its decision would be fully met.

Abby Scher


Independent Contractors

Corporate America’s favorite labor law loophole is its failure to cover independent contractors. Call someone an independent contractor, and leave overtime pay at the door, along with the Fair Labor Standards Act. While you’re at it, leave the anti-discrimination provisions of the Civil Rights Act and protections of the Occupational Safety and Health Act. Your employer probably wouldn’t be liable for worker’s compensation if you are injured. Nor would he pay the employer’s share of Social Security, Medicare, or unemployment taxes. And he could legally fire you if you protest, because the right of independent contractors to form a union isn’t protected by the NLRA. Almost 7% of workers — about 8 million people — are independent contractors, defined as those working on short term projects or for multiple businesses. But as many as half of that number are in that category illegally, according to the accounting firm Coopers and Lybrand.

The most notorious scofflaw is Microsoft, which in 1990 was caught misclassifying thousands of high-tech employees as independent contractors, giving them no benefits. But low waged workers — janitors and nurses aides, for instance — are as likely to be misclassified as high-end workers, the Economic Policy Institute found. Two cases now winning attention involve editors and translators at the massive textbook publisher McGraw Hill in New York and chicken catchers who drive around in Perdue Farms trucks to collect chickens from farmers under contract with the company.

To stop their employer from misclassifying them, some McGraw Hill employees are thinking union. At the Congressional level, the AFL-CIO is backing a bill that would simplify the test the Internal Revenue Service uses to categorize independent contractors.

Abby Scher


Cali-Ho!

California farmworkers are said to enjoy the best state labor laws in the nation. In California, farmworkers are afforded the right to organize, assemble, and vote for a union in secret ballot elections — rights not protected by federal law since the National Labor Relations Act of 1935 explicitly excluded farmworkers.

California’s "is probably the most prolabor law in the country," says United Farm Worker (UFW) spokesman, Marc Grossman. How then is it that 40% of California farmworkers are uninsured and earn a family income near the bottom of any occupation surveyed by the U.S. Census?

The law is there but the enforcement is not. Though the law was enacted in 1975 under Governor Jerry Brown and during UFW’s greatest power, it was administered by Republican governors between 1983 and 1998. Grossman says the tide may be turning; the new Democratic governor is making prounion appointments to the state labor board.

The grass may be getting greener in California, but what of the rest of the nation? "Outside California, farmworkers enjoy no rights," Grossman says. There are only three other states — Arizona, Kansas, and Idaho — with laws covering farmworkers. And these laws are overwhelmingly negative, Grossman says, even outlawing the right to strike.

Farmworkers are consistently left out of U.S. labor law. They are excluded from overtime pay and often from the minimum wage. Children can work, and like adults be paid at piece rates. Farmworkers, who are typically non-English speaking and are often here without papers, are easy to abuse and exploit. "It’s no secret that farmworkers are among those the lowest paid, highest occupational disease and death rate, and on-the-job fatalities," Grossman said. In 1990 alone more than 22,000 farmworkers were disabled. The life expectancy of migrant farmworkers is 49 as compared to the national average of 75.

Agribusiness is just too powerful. It’s a $25 billion business in California alone. This, along with a Republican Congress, has discouraged labor activists from seeking to pass a national law as strong as California’s.

Melissa Hostetler


Title VII: New Jersey State Police

In a display of public relations savvy, the New Jersey State Police in July released the results of a review board investigation into complaints of race and gender discrimination of police employees. Though the report was presented as a display of good conscience and community concern, it was prompted by an ongoing investigation of the state police by the federal Equal Employment Opportunity Commission (EEOC), and by 11 lawsuits, five for race and six for gender discrimination.

With only 3% of its force female, the N.J. State Police ranks second from the bottom among large U.S. state police agencies at recruiting women. In 1998, only six of 184 officers with ranks over sergeant were minority males and only two out of 161 lieutenants were women. No women achieved a rank above lieutenant. Since 1995, according to the state report, 72 internal complaints were filed for either race or gender discrimination.

Despite New Jersey’s mea culpa, absent are any charges of discrimination on the basis of sexual orientation. That’s because Title VII of the 1964 Civil Rights Act bars discrimination only on the basis of "race, color, religion, sex or national origin." Still missing from the law and from its interpretation is protection against discrimination based on sexual orientation. Lesbians are being forced to plead their cases based on sex discrimination and its affect on women in general, not their sexual orientation, says Yolanda Wu, staff attorney for the NOW Legal Defense and Education Fund. Gay men, it seems, have no course of action for protecting themselves.

Women of color are also victim to a loophole in the law. They must split their grievances between gender and racial discrimination. Because the courts refuse to take their case as a whole, women of color must have enough evidence for race and gender discrimination separately.

The EEOC takes on very few cases, so employees are on their own in suing their employer under Title VII. But even if they win in the lower courts, there is a high rate of reversal at the appellate level. "There is just a lot of hostility to these claims," Wu says. "They are seen as not as important."

Melissa Hostetler


Safety on the Job: Tyson Foods, Scofflaw Among Chickens

Poultry processors suffer one of the highest rates of injury of all workers — 20% are injured on the job, twice that of any other U.S. industry. To add insult to injury, workers — earning below poverty wages for a family of four — are forced to buy their own safety equipment, usually at inflated prices from the company store. In some cases the cost is illegally deducted from their pay.

Some conditions in these plants have changed little since Upton Sinclair wrote The Jungle about Chicago meatpacking early in this century, says Jackie Nowell, the United Food and Commercial Worker’s safety expert. Workers perform the exact same cut thousands of times in a day, often leading to deformed bones, arthritis, and carpal tunnel syndrome. In an effort to increase production, equipment and work areas are often overcrowded. There are also some dangerous, high-tech innovations. The equipment — high powered saws and extremely sharp knives — run at a very fast rate, with each worker processing about 90 birds an hour.

In 1998, the Department of Labor determined that Tyson Foods and 11 other corporations don’t pay workers for the time they take on and off safety equipment, nor for bathroom and other short breaks, cheating them out of 30 minutes of overtime pay each day and discouraging safety. Using this information, poultry workers at a Corydon, Indiana, plant filed a half-billion dollar law suit against Tyson through their food workers union.

While the industry tends to ignore the safety standards that exist, they’ve been aided by Congressional Republicans who ensure Occupational Safety and Health Administration (OSHA) ergonomic standards on repetitive motion are never implemented. Their latest delaying action in August directs OSHA to study the standard for two more years. Perdue voluntarily adheres to ergonomic standards, but only one Tyson plant is slated to. That’s the Loel, Missouri, plant, which agreed to as part of a settlement with OSHA in May.

Giulia Cangiano


National Labor Relations Act

Striking steelworkers at tire plants in Des Moines, Iowa, and Natchez, Mississippi, are discovering how easy it is for a boss to ignore the rulings of the National Labor Relations Board (NLRB). When Congress enacted the NLRA in 1935, it sought to ensure labor peace by funneling stubborn employers and militant workers through the NLRB.

But the NLRB is notoriously slow, and when it does issue a ruling, Congress does not give it any enforcement power beyond modest fines determined bosses gladly swallow. Like Titan Tire CEO Morry Taylor, known as "The Grizz" to his employees because of his fierce temper.

An NLRB judge ruled Titan engaged in unfair labor practices against workers, who have been on strike over wage and pension issues since last September. Titan had discontinued the insurance benefits of workers on leave or involved with organizing the strike, moved equipment and jobs to other plants to evade the union, hired replacement workers at lower wages and benefits, and unilaterally imposed a contract on members of Steelworkers local 164.

The judge issued a cease and desist order to The Grizz, but with his usual bear-like growl, the boss continued with business as usual. Almost a year later, the NLRB has not gotten the workers back on the job. Union members are still picketing, replacement workers are still working at half the pay and a fraction of the training, and production has yet to begin at Titan Tire’s new Brownsville plant — even though Texas promised Taylor $30 million in corporate welfare to move it there. The citizens of Brownsville donated $5,000 to the steelworkers’ strike fund over the summer.

Brian Kelly


Scofflaw Star: Avondale

One of the nation’s worst labor scofflaws is a military contractor that receives 80% of its revenue from the U.S. Navy. Avondale Industries has broken every law in the book to fight off a union organizing campaign. So far, $5.4 million in legal fees (paid for by the U.S. Navy), $3 million in penalties for improper labor practices, and 28 illegally fired workers have won Avondale a union-free workforce.

In 1993, in a tight election, Avondale workers in New Orleans voted to unionize with a coalition of metal trades unions. The NLRB certified the election in 1997 and ordered Avondale to rehire the workers and start bargaining. But Avondale appealed the decision to a federal court and won in July. During the NLRB election, workers followed the rules, and showed a photo identification with their name on it before voting. But because they did not provide their social security number — which is not required by the NLRB — the federal judge ruled the election invalid. In a release, the AFL-CIO said, "The court effectively created a presumption that workers are guilty of voter fraud until proven innocent. This decision highlights the grave difficulties workers across the U.S. have in forming a union under current, watered-down labor law."

The AFL-CIO’s director of organizing has called the NLRB a "death trap" for organizing new unions. Some unions, like the Hotel Employees and Restaurant Employees (HERE), are avoiding NLRB elections altogether when possible. While organizing thousands of Las Vegas hotel workers or a handful of New York cafeteria workers at Solomon Smith Barney, HERE collected union authorization cards from half the workers and successfully demanded the employer recognize them. No NLRB election. The strategy is most successful in industries where unions already have a foothold, as Craig Becker argued in last fall’s New Labor Forum.

Brooks Bitterman, director of research for HERE in New York, argues, "The big problem isn’t that companies can fire a worker (which happens in at least 20% of campaigns). It’s the latitude employers have to harass workers on a daily basis, switching people’s schedules around, making people’s lives miserable day after day. By the time an election comes around, workers aren’t voting for a union, they’re voting for how life used to be.

"This is supposed to be the workers’ decision to make in the 1930s’ view of labor law. The law doesn’t set out the NLRB as the only mechanism (for recognition), so we use another mechanism."

Abby Scher

Abby Scher is co-editor of Dollars and Sense and a sociologist. Giulia Cangiano, Melissa Hostetler, and Brian Kelly are Dollars and Sense interns.

Resources: Craig Becker, "Reconstructing the Right to Organize," New Labor Forum, Fall/Winter 1998; Dorothee Benz, "The Case for Card Check Campaigns," New Labor Forum (Fall/Winter 1998); "Independent Contractors: A Briefing Paper," AFL-CIO Policy Department (April 1999); Charles Fried, "Supreme Court Folly," The New York Times, July 6, 1999; Nelson Lichtenstein, "From Corporatism to Collective Bargaining: Organized labor and the Eclipse of Social Democracy in the Postwar Era," in Fraser and Gerstle, The Rise and Fall of the New Deal Order (Princeton, 1989); Robert M. Schwartz, The FMLA Handbook (Work Rights Press, 1999); "State Family Leave Income Initiatives," National Partnership for Women and Families (June 1999).
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