Today’s News & Commentary — August 7, 2019


Published August 7th, 2019 - 08.07.196


This year, public sector employees in blue states have organized to expand their collective bargaining right—scoring significant legislative gains in spite of the Supreme Court’s 2018 Janus decision. The Intercept reports that more than 22,000 public sector workers in Nevada and Delaware have “gained the right to collectively bargain this year thanks to recently passed legislation,” with Colorado expected to do the same next year. Delaware’s new legislation makes it the 26th state to recognize state employees’ right to collectively bargain. Nevada and Delaware’s new legislation highlights state attempts to support workers’ rights at a time that the Trump Administration and federal courts are increasingly hostile to organized labor.

After the #MeToo movement exposed ways that employers use forced arbitration to sweep sexual harassment under the rug, state legislatures have considered 19 proposed laws to limit forced arbitration. According to Bloomberg, New York, New Jersey, Vermont, and Maryland all passed legislation limiting mandatory arbitration clauses in employment contracts, which bar workers from going to court when they experience illegal treatment (including discrimination) at work. But these laws are likely preempted by the Federal Arbitration Act (FAA), a 1925 law that makes mandatory arbitration agreements enforceable. Although the FAA was primarily written to facilitate arbitration agreements between large corporations, the Supreme Court has read increasingly widely in recent years to allow corporations to force more and more workers and consumers to sign away their right to sue. New York’s law is now being challenged in federal courts by Morgan Stanley and Louis Vuitton, defendants in two separate harassment lawsuits, who argue that the state’s ban on forced arbitration for harassment claims is pre-empted by the FAA.

In a shocking split decision, the GOP-majority on the National Labor Relations Board ruled that a company gave a false justification for firing a union organizer—but still didn’t violate labor law. Although the NLRB found that management at an oven manufacturing company told a union activist to “shut up” when she advocated for unionization, and the employer gave a pretextual reason for discharging the employee, the NLRB held that there was not enough evidence to prove the discharge was motivated by anti-union hostility. In a dissent, a Democratic Board member pointed out that this case is “the first time in history the Board has declined to find a violation of the Act when there is clear reason to infer an antiunion motive and no evidence . . . of any other lawful motive.”

Staffers on Senator Cory Booker’s 2020 Presidential campaign have unionized with the Teamsters, the campaign announced yesterday. The Booker campaign voluntarily recognized the staff union. 2019 has been an unprecedented year for campaign unions. This May, former HUD Secretary Julián Castro’s became the first Presidential candidate to recognize a staff union, followed this summer by the campaigns of Senator Bernie Sanders, Rep. Eric Swalwell, and Senator Elizabeth Warren.

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