I recently proposed a Workers’ Bill of Rights, and invited others to respond with suggestions for other rights that should be included. I did receive some helpful comments, and in response I would propose adding three additional rights to the ones I had previously proposed:
A Right to Strike and Engage in Other Concerted Actions: These are the key rights protected by the National Labor Relations Act (NLRA), but, as James Gray Pope, Ed Bruno, and Peter Kellman recently pointed out, they often exist more in theory than in fact. There are many reasons for this, but at least in the private sector, here are some of the key ones: First, an employer’s ability to permanently replace striking workers, particularly when combined with a constant reserve of unemployed individuals, has virtually eliminated the strike as a viable weapon for most workers. Next, few workers are aware of their rights under the NLRA. When the Labor Board took a small step to address this ignorance by issuing a rule that required employers to post notices informing workers of their rights, employers succeeded in enjoining the rule. In addition, when employers interfere with these rights, it can take years to obtain a legal victory, and the victory is often hollow because the NLRA does not impose any penalties on employers.
A Right to Be Free from Discrimination: One of the places where we have made real strides in this country over the last forty years is in combatting race and sex discrimination in the workplace. It hasn’t gone away, and workers are still often too scared to speak up when their supervisors are the perpetrators, but most employers at least proclaim a commitment to fight race and sex discrimination. Unfortunately, in many cases this commitment to combat discrimination does not extend to discrimination based on sexual orientation or gender identity. The circuit courts are split on whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation. Only about half the states outlaw employment discrimination based on sexual orientation and gender identity. Thus, while the Constitution may protect the right of same sex couples to marry, it does not prevent their employer from firing them for exercising that right.
A Right to a Remedy: One of the most basic principles in law is that there must be a remedy for every violation of a right. Yet, under current law, while undocumented immigrants are theoretically covered by workplace laws, they are not provided with a remedy if they are fired in violation of state or federal law. Even if you believe we need to do more to discourage immigrants from coming here or staying if they lack proper authorization, this makes no sense. No one comes to this country (or stays) because they hope that someday they will be fired and will be able to file a charge or a lawsuit that may eventually provide them with backpay. As long as we have millions of undocumented workers in this country, the rest of us need assurance that these individuals will have a reason to speak up when their employers violate worker protection laws. Apart from undocumented immigrants, more and more workers are losing access to the courts and to procedures that allow them to vindicate their legal rights. The Supreme Court has already allowed employers to replace jury trials with arbitration. Next year, the Supreme Court will decide whether employers may force workers to arbitrate their claims individually, rather than joining together to bring collective or class actions against their employer. Lawyers tend to gravitate toward cases where the most money is at stake, so low wage workers can have trouble finding lawyers willing to take their cases. But when workers can band together to file claims jointly, they can attract lawyers who can obtain justice for them.