Sunday, October 15, 2017

Does Labor Law Protect Protesting NFL Players? It's Probably a Hail Mary

The raging controversy over the kneeling by NFL players during the playing of the national anthem took yet another turn recently, this time with labor law in the spotlight. Specifically, there has been publicity and press over the possibility that the National Labor Relations Act (NLRA) protects protesting players against being fired or other reprisals for their actions. Perhaps most notably, the New York Times published an article tree days ago with the headline "N.F.L. Players May Have an Ally in Their Protests: Labor Law." But just like a Hail Mary pass by a desperate football team as time runs out, I think this has low odds of success.

The classic applications of the NLRA pertain to situations involving labor unions, including workers trying to form a union, unions and companies bargaining contracts, and strikes by unionized workers. But as I have blogged about in at least one previous entry, the NLRA’s protections are not limited to situations involving formal union actions. Rather, the NLRA more fundamentally protects collective efforts by workers to improve their work situations. This is the relevance of the NLRA in this situation because even though the NFL players are unionized, their protest actions during the national anthem are not in the context of formal union activities like forming a union or bargaining a contract.

In this context, the New York Times article correctly indicated that “To be protected under federal labor law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means.” Given the widespread nature of the protests, Test #1 (conducted with co-workers) is satisfied. But unlike the experts quoted in the article, I’m skeptical that the remaining two tests are satisfied.

Test #2: addressing a job-relevant issue. The NLRA seeks to protect workers who join together to improve their wages, hours, and terms and conditions of employment. This has been interpreted in broad terms, including prohibiting employers from preventing employees from sharing their salary information with each other. Political activities are included in these protections, but only when those activities are sufficiently connected to employment conditions. To date, the NFL player protests have been about social justice, police brutality, and inequality. Obviously these are important issues, and I applaud the players’ stands, but these are not issues that are connected to their employment. [With that said, if the tenor of the protests shifts, for example, to expressing solidarity with a player who was reprimanded for protesting, then that solidarity action would fit within the scope of the NLRA. Unfortunately, the implication is that the players would have greater protections under labor law if their actions were more selfish (I guess the NLRA is very American after all), but based on Test #3 this still might not be enough to protect them in this case.]

Test #3: conducted in an appropriate way. It’s important to remember that the NLRA’s protections are not unlimited. Rather, the law’s key challenge is balancing workers’ and employers’ rights and interests (hence the title of my textbook, Labor Relations: Striking a Balance). So actions that harm an employer’s business are not necessarily protected. In classic doctrine, workers can be prohibited from talking about unions or wearing buttons if this disrupts the employer’s business by undermining efficiency and discipline, by affecting customers, or by harming its public image. Presumably the NFL could argue that the protests are harming its image and business. The burden of proof would be on the NFL so it’s not clear which way a legal ruling would go, but my point is that it’s certainly not clear that labor law is on the players’ side.

Adding to this, insubordination is not protected by the NLRA. Suppose the NFL tried enforcing a policy of standing for the national anthem. We could then see a continued protest as a protest against this work-related rule rather than as a political protest. Under Test #2, this is now more germane to their employment. That's the good news, in terms of this labor law analysis. But the bad news for the players is that refusing to stand for the national anthem in protest to a requirement that they do so would likely amount to unprotected insubordination. This would be a situation where players refuse to obey this one policy while complying with other policies (e.g., playing the game!)--that is, the players could be seen as selectively refusing to follow managerial directives that they dislike while complying with other directives. Labor law protects workers' solidarity actions, but it doesn't give them the right to pick and choose which managerial directives to follow and which to ignore. So this would likely be a case of (unprotected) insubordination than of (protected) collective protest. 

In closing, it’s great that labor law is being discussed in this context. Labor law applies to many more situations than is commonly believed, so anything that raises awareness is a good thing. Also, I don’t intend this as a criticism of the players who are protesting. I applaud their desire to raise difficult questions and seek social justice. But for better or worse, I think the extent to which labor law might provide protections in this particular case has been overstated in the media. Labor law can assist workers in many situations, but this might not be one of them. 

Saturday, September 16, 2017

Minnesota Legislature: Respect U of M Contingent Faculty By Letting Them Decide Whether or Not to Unionize

Whether a group of employees wants to form a union to represent them in collective bargaining is a decision that those employees should be entitled to make. Unfortunately, contingent faculty (non-tenure-track instructors, lecturers, and teaching specialists) at the University of Minnesota will likely not get to make that decision themselves. Rather, the Minnesota State Legislature effectively prevented them from being able to make this decision when it enacted an unnecessary provision in state law over 35 years ago. In the wake of a state appeals court ruling earlier this month upholding this strange legislative provision, it’s time for the legislature to correct its earlier mistake and repeal this provision.

Perhaps some background is needed. When some employees want to form a union, an appropriate bargaining unit needs to be defined in order to specify exactly what positions would be represented by a union if an organizing drive is successful. Standard practice is for the employees or their desired representative (a specific labor union) to initially propose this definition. If an employer objects and prefers a broader or narrower definition, then a neutral, expert governmental agency investigates and determines the exact definition of the appropriate bargaining unit based on input and evidence. This is exactly what happens in the U.S. private sector (with the National Labor Relations Board empowered by federal law to handle unit determination questions based on its judgement of which employees share a “community of interest”), and, as far as I can tell, in almost all public sector jurisdictions in the United States (for example, see South Dakota's Public Employment Labor Relations Act section 3-18-4 or Iowa's Public Employment Relations Act section 20.13).

When the Minnesota Public Employment Labor Relations Act (PELRA) was first enacted in 1971, this standard practice was adopted by empowering the Bureau of Mediation Services (BMS) to determine appropriate bargaining units when a public sector employer objects to the workers’ proposed definition. For state agencies, the law contained a proviso that an appropriate bargaining unit should consist of “all the employees under the same appointing Authority” unless “professional, geographical or other considerations affecting employment relations clearly require” some other appropriate unit (section 179.74). As is common elsewhere, there were no special provisions for the University of Minnesota, school districts, or others covered by PELRA.

In 1980, however, the Minnesota State Legislature deviated from common practice by changing PELRA to specify 16 (now 17) state bargaining units and 12 (now 13) University of Minnesota bargaining units (see Minnesota Session Laws 1980 c 617 s 40) (in later years, court units were also specified). This has long puzzled me, especially because it runs contrary to standard practice, and it is likely rooted in a desire to impose operational stability or convenience by limiting the number of bargaining units that a state agency or the University of Minnesota has to deal with. But the effect is to impose an outdated occupational structure on contemporary realities and to deny employees their rights to form unions and engage in collective bargaining. This is clearly not the way to balance efficiency, equity, and voice—a principle that I have long advocated as the key objective of work-related public policy (also see this, and this).

Getting back to the plight of contingent faculty at the University of Minnesota, the way the process should have worked was for BMS to have had the discretion to use its expert judgement decide whether it was best to include contingent faculty with tenure-track faculty, or to define two separate units, based on input, hearings, and the facts of this particular situation at this particular time. But with the unit definitions pre-specified by state law, contingent faculty are not allowed to have their own unit, and the state appeals court ruled that they are not part of the tenure-track unit. So this ruling means that contingent faculty are included in a catch-all unit of all professional and administrative employees at the University of Minnesota. The diversity of this unit is hard to grasp. By one count, there are over 300 job titles in it, presumably many more than in 1980. By my reckoning, this will kill the contingent faculty union drive because  in order to unionize they'll need to get a majority of accountants, cartographers, athletic trainers, and numerous others to all vote for a single union, which is close to impossible. It strains credulity to think that this diversity (a) represents a community of interest for these employee groups and (b) serves anyone’s interests except the administration of the University of Minnesota because it makes unionization almost impossible (which might explain why the administration spent 18 months trying to get this ruling).  

The processes of labor relations work best when they are allowed to be dynamic and to adapt to changing situations by those directly involved. Collective bargaining has proven to be adaptable to many industries and occupations, and can handle economic, technological, and other changes when labor and management negotiators have the freedom to determine the scope and tenor of their negotiations. Similarly, determining appropriate bargaining units should be a flexible process in which a neutral, expert agency has the ability to adjust to changing trends based on input from the relevant parties, hearings, and evidence about the particular realities of each case. The world of work has changed significantly since 1980, and it’s silly to think that even a well-intentioned legislative intervention in 1980 is still the best approach today (exhibit A: the tremendous rise of contingent faculty at the University of Minnesota).

But there is an easy solution: simply repeal sections 179A.10 Subd. 2 (defining state units), 179A.101 Subd. 1 (defining court units), and 179A.11 Subd. 1 (defining University of Minnesota units). No language is needed to replace these unnecessary passages. In their absence, the authority to determine appropriate bargaining units on a case-by-case basis will revert back to BMS under sections 179A.04 Subd. 2 and 179A.09, and common sense practice found throughout the rest of the state and most of the country will be restored. And contingent faculty at the University of Minnesota, and perhaps other employee groups, too, will be able to act like the autonomous, dignified human beings that they are and make a decision whether to unionize or not.

Monday, August 14, 2017

From Google to Top Dog hot dogs via Charlottesville: What About Employee Free Speech?

It’s been an “interesting” week. First, a Googler was fired for his infamous memo on the alleged biological roots of gender inequality. And now Top Dog, a California hot dog chain, has fired a cook because he was identified on social media as a participant in the white supremacist demonstration in Charlottesville. These firings are probably legal in the United States because of employment-at-will, but should they be?

Most workers in the United States are at-will employees. As explained by a Tennessee court way back in 1884, this means that employers “may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Employment-at-will is not unlimited. Workers covered by union contracts or similar civil service rules are likely shielded from the vagaries of at-will employment by policies that require a just or good cause for being disciplined or terminated. And there are legal exceptions, such as nondiscrimination protections (you can’t be fired because of your gender or race, for example), and some very specific judicial exceptions. But these exceptions are much narrower than most people believe. Most workers can’t be fired for a reason that violates a specific nondiscrimination law, but otherwise employers generally do not need a good reason to fire someone. So even if the cook has been misidentified, he can still be fired because Top Dog doesn’t need a good reason for firing someone.

But what about the First Amendment protection of freedom of speech and expression? Doesn’t this protect the Google engineer and the hot dog cook? No. The First Amendment protects freedom of expression by restricting governmental limitations on freedom of speech; it does not prohibit private organizations like Google and Top Dog from limiting speech and expression. Contrary to popular beliefs, U.S. workers generally do not enjoy the right to free speech and expression. So the firings of the Google engineer and the hot dog cook were likely legal.

But should they be? In our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocate for broad freedom of speech protections for employees. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, attend meetings and demonstrations, and blog or tweet about issues of either public or private concern. With that said, a difficulty with any free speech protection is how to accommodate views that are unpleasant and contrary to our own. These difficulties will never disappear, but currently they are solved in the work arena by giving employers all the power. I think it would be better to have some protections. 

And yet, the events of the past week dramatically highlight that these protections should not be unlimited. Rather, there should be statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity (which isn’t in doubt for the two workers here), then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.

What would this mean for the Google engineer and the hot dog cook? Would their reprehensible actions be protected? Probably not. Behavior that harms the employer’s reputation as well as behavior that causes other employees to be unable to work with him or her are generally seen as giving the employer a legitimate business reason to discipline or fire a worker even when that worker is protected by a just cause contractual provision (as in the United States) or wrongful discharge statute (as in Canada). So firing the Googler and the cook would likely be legal. We do not have to concede all employee rights to freedom of expression in order to denounce the behaviors of the past week. 

Admittedly, there might be other circumstances which might make us uncomfortable. Would firing a worker who attended a Black Lives Matter rally be acceptable because racist co-workers refused to work with this individual? Or would it be illegal to fire someone charged with sexual assault outside of the workplace if that worker doesn't work with anyone else (see the Ontario case of Merritt v. Tigercat Industries)? There are no easy answers here, or in many other areas of legal standards. But I submit that some standards are better than none. 

So the Google engineer, the hot dog cook, and many other U.S. workers should have greater speech and expression protections than is currently the case. But these protections shouldn’t be unlimited. Granted, this isn’t as efficient as giving employers unilateral authority.  As with many other aspects of the employment relationship, we need to find a balance between complex, competing interests.