Big Business Suing to Stop Notices Informing Workers of Their Right to Organize
The U.S. Chamber of Commerce and other industry representatives are blocking a new rule that would better inform workers of their legal rights. The rule, issued by the National Labor Relations Board (NLRB) in August 2011, would inform employees of their right to organize and bargain collectively. The rule would add to the existing framework of policies to protect workers' right to know, but business lawsuits are preventing it from taking effect.
What You Don't Know Can Hurt You
Under the National Labor Relations Act and international human rights law, employees have the right to form or join unions and to bargain collectively. Congress established the NLRB in 1935 to protect those rights and to enforce fair practices by employers and unions.
However, many workers are unaware of these rights or that the NLRB will protect them if they exercise these rights. Not knowing these facts has real consequences for America's workers and economy. Most directly, lack of knowledge puts employees at a disadvantage for demanding better labor practices.
More broadly, lack of knowledge about labor rights has contributed to the decline in the number of workers who have access to the protections and benefits of a union. Studies show that unions raise wages and benefits for their members, as well as non-members, and play an important role in enforcing workplace protections. The decline of union membership in recent decades has been closely linked to the rise in income inequality during the same period. Ensuring that workers are aware of their labor rights is a critical element to rebuilding the middle class and making America's economy fairer.
Congress gave the NLRB the authority to issue "such rules and regulations as may be necessary" to enforce the National Labor Relations Act. In the rule, the NLRB states that requiring the notice posting is necessary to protect workers' rights by informing them.
Informing America's Workers
The NLRB rule being contested requires employers to post a notice in the workplace that summarizes employees' rights under the National Labor Relations Act. The poster also provides information on how to contact the NLRB if an employee feels his or her labor rights have been violated. Posting notices in the workplace has been considered a particularly appropriate method to inform workers (since the notice contains information about their employment rights), and posting a notice has been considered minimally burdensome on employers.
Employers are already required to post various notices informing employees about issues that concern them. For instance, the Family and Medical Leave Act of 1993 requires employers to post notices that explain the rights employees have to reasonable leave for medical reasons. Employers failing to maintain such postings can be fined. Similarly, under the Fair Labor Standards Act of 1938, employers must post information about minimum wage standards. Other laws have established requirements for notification of health and safety requirements and protection from age discrimination.
Big Business Fighting to Prevent Notices about the Right to Organize from Being Posted
Several prominent business associations, including the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce, flooded the NLRB with opposition comments while the rule was under consideration and promptly sued after the final rule was issued. On March 2, the U.S. District Court for the District of Columbia held that the rule was valid in response to a case brought by NAM. The association appealed its decision and on April 17, the U.S. Court of Appeals for the D.C. Circuit issued a temporary injunction, preventing the rule from taking effect while the court considers the case.
In a separate case filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of South Carolina, the court ruled on April 13 that the NLRB lacked authority to issue the rule. On May 2, the NLRB indefinitely postponed the rule's implementation until the legal challenges are resolved. In the meantime, workers will be left in the dark – a status that will continue if industry special interest groups succeed in striking down the rule.
Tug of War
This notice is similar to another struggle related to government contractors that has played out over 20 years of dueling executive orders. In 1992, President George H.W. Bush issued an executive order requiring federal contractors to post a notice informing employees of the limits of unions but did not include any explanation of employers' responsibilities to workers. President Clinton revoked that order in 1993. In 2001, President George W. Bush again required the notice, with a slight amendment.
Most recently, President Obama revoked the Bush notice in 2009, replacing it with a poster describing the responsibilities of employers and unions alike. The NLRB rule adopts the text of the Obama notice for posting by all employers subject to NLRB jurisdiction, not just federal contractors.
Right to Know for a 21st Century Workforce
The NLRB rule is just the latest development in an evolving framework for workers' right to know practices. A new feature of the rule is that employers who customarily post personnel policies on a website or intranet will be required to post the notice there, in addition to their physical facilities. The NLRB stopped short of an earlier proposal to require that right to organize notices be distributed by e-mail if employers customarily communicate with employees via e-mail.
In the 21st century, when many employees telecommute and may never set foot in their employers' physical facilities, finding new ways to inform workers of their rights electronically seems reasonable and necessary. The new NLRB rule could provide a model for modernizing the rest of our workplace right-to-know policies – that is, if Big Business does not succeed in striking down the rule before it even goes into effect.